(specially concurring). I concur with Mr. Justice Bobinson that the petition in this case should be denied. I do not, however, fully concur in all that he has said or in the result which he arrives at on his last proposition.
I am clearly of the opinion that there are two emergency clauses provided for in North Dakota, or rather an emergency clause and a clause which denies the right to a referendum in certain cases. I am satisfied that these clauses are not inconsistent with one another.
Section 67 of art. 2 of the Constitution provides that “no act of the legislative assembly shall take effect until July first, after the close of the session, unless in case of emergency (which shall be expressed in the preamble or body of the act) the legislative assembly shall by a vote of two thirds of all of the members present in each house, otherwise direct.”
Section 25 of art. 2, before its amendment, merely provided that “the *389legislative power shall be vested in a senate and house of representatives.”
It said nothing in regard to the time in which a hill should take effect.
The amendment to this section and article not only did not repeal its provisions, but re-enacted the whole of the original section. It merely added to the general and fundamental enactment that “the legislative authority of the state of North Dakota shall be vested in a legislative assembly consisting of a senate and house of representatives;” the further provisions that “the people reserve to themselves power to propose laws and enact or reject the same at the polls,” and that “any measure referred to the people shall take effect when it is approved by a majority of the votes cast thereon and not otherwise, and shall be in force from the date of the official declaration of the vote.”
Nothing is said in the amendment as to the status of laws which have been passed by the legislative assembly and which have not been referred. The only provision on the subject is that “the filing of a referendum petition against one or more items, sections or parts of an act shall not delay the remainder of that act from becoming operatime. Referendum petitions against measures passed by the legislative assembly shall he filed with the secretary of the state not more than ninety days after the final adjournment of the session of the legislative assembly which passed the measure on which the referendum as demanded.”
I can find nothing in the Constitution and the amendments thereto which in any way nullifies or retards the operation of an act or a part of an act which has not been referred, or which prohibits the legislature from making an act which has not been so referred immediately operative under the provisions of § 67 of article 2.
The acts, of course, are subject to be referred under the provisions of the referendum amendment. That referendum, however, is in the nature of a veto power. The amendment itself takes pains to re-state the provision of the former section that “the legislative authority of the state of North Dakota shall be vested in a legislative assembly.” . Bills still bear the title, “Be It Enacted by the Legislative Assembly of the State of North Dakota.” I can see no intention or intimation of any intention that the sovereign power of legislation vested in the legislative assembly should be in any way curtailed, unless a referendum is demanded and had.
*390We have, indeed, in North Dakota, absolutely repudiated any theory of “the Kings, the Lords, and the Commons,” and that the executive is a part of the legislative body, and we have adopted the same theory in regard to the referendum; In England the consent- of the Monarch is absolutely necessary to the validity of an act, for it is “the King, the Lords, and the Commons” who enact. In North Dakota the executive, the governor, has merely a veto power, and his signature is only evidence that that veto power will not be exercised. Unless, indeed, the veto is made within three days after the presenting of an act during the session of a legislative or within fifteen days after the termination thereof, in case of bills which are not presented to the governor until three days before the end of the session, the bills are operative without the executive sanction at all. The same, I believe, is true of acts which may be referred, if the people do not demand a referendum. The bill is, and always was, a valid act, and the sanction of the people is not necessary to the validity of the legislative enactment. When the legislature passed the act in question in the case at bar, they had the right under the Constitution to express their desire that it should be immediaely operative. This they did, and the people have not thought fit by referring the measure to interfere with their determination.
I have carefully examined the cases which are cited by counsel for petitioner, but none of them seem to me to be conclusive on the question, nor to warrant us in departing from the well-established rule that the various clauses and sections of the constitutional and legislative provisions should, if possible, be construed together, and a purpose and a meaning be ascribed to each.
It is to be noted, indeed, in examining these cases that the California and Arkansas Constitutions contain no provisions which are similar to § 67 of the Constitution of North Dakota. It is also to be noted that in the case of Atty. Gen. ex rel. Barbour v. Lindsay, 178 Mich. 524, 145 N. W. 98, the supreme court of Michigan partly based its decision on the proposition that a constitutional provision corresponding to § 67 of the Constitution of North Dakota had not been allowed to remain as a separate section, but had been incorporated in the new section of the new Michigan Constitution of 1908, and that the new clause was, therefore, exclusive and restrictive upon the former powers granted to the legislature.
*391The Missouri Constitution contains a provision similar to § 67 of the North Dakota Constitution, but an examination of the act involved in State ex rel. Kemper v. Carter, 257 Mo. 52, 165 S. W. 773, cited by .the attorney general, discloses that there was no emergency clause whatever in the bill under consideration. Consequently, while some of the language used by the Missouri supreme court in that case tends to support the contentions of the attorney general, yet such language is obviously obiter.
The Oregon court, it is true, announces a rule contrary to that herein expressed, but it is to be noted that in Oregon there was no provision similar to our own, which requires a two thirds vote to put the emergency clause into operation. There, the Constitution merely reads: “No act shall take effect until ninety days from the end of the session at which the same shall have been passed, except in case of emergency; the emergency shall be declared in the preamble or in the body of the law.” Or. Const. § 28.
In the Washington case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11, the only question really under consideration was whether the courts could go back of the legislative declaration of an emergency and inquire into the fact as to whether an emergency really existed. It is to be noticed, too, that, although there is in the Constitution a provision which is similar to § 67 of art. 2 of the Constitution of North Dakota, the provision in regard to the referendum is not the same. The North Dakota Constitution provides that “any measure referred to the people shall take effect, etc.” The Constitution of Washington provides that “no act, law, or bill, subject to the referendum, shall take effect until ninety days after the adjournment of the session at which it was enacted.” Wash. Const. § 1, ¶ O. The Washington provision, it will be thus seen, clearly refers to all acts which may be referred, while the North Dakota provision, as we have before stated, merely refers to measures which have been referred.
In the case of State ex rel. Richards v. Whisman, 36 S. D. 260, L.R.A.1917B, 1, 154 N. W. 707, all that was said by the court as to the laws going into immediate operation was merely dicta. The only question involved was whether the legislature had the power to repeal an act which had been initiated by the people.
If, too, as is pointed out by Mr. Justice Robinson, we resort to the aid *392of contemporaneous construction, we can only arrive at the same conclusion as that before expressed. To hold, indeed, with the contention of petitioners, would be to invite suits for the recovery of the oil inspection fees; the exaction of which was authorized by the same legislature. It would invalidate bonds and upturn contracts. Not only, indeed, did the legislature act on the assumption that an act could be put into immediate operation in the case of a large number of civil measures, but in a criminal matter of high importance. By adding an emergency clause it saved a criminal from the gallows, even after the deathwatch was set. Not only, indeed, did the legislature adopt the theory of immediate operation, but all of the state officials also.
It is, too, worth remembering that at least one half of the members of the senate in 1915 were members of that body in 1913, and that the same is true of a large number of the members of the lower house. State ex rel. Lavin v. Bacon, 14 S. D. 394, 85 N. W. 607.
The initiative and referendum amendment to § 25 of the Constitution was introduced as Senate Bill No. 32 (Sess. Laws 1913, chap. 101) by Senator Overson. The record shows that among the senators who voted in favor of the proposed.amendment were Senators Bronson (one of the present assistant attorneys general), Overson, who introduced the bill, and Davis. Senate Journal 1913, p. 1076. The records also show that at the 1915 session Senator Bronson introduced an act making an appropriation of $15,000 for the Grand Fork’s Fair Association, with an emergency clause drafted under the provisions of § 67 of the Constitution. See Sess. Laws 1915, chap. 45. Senator Overson introduced a bill appropriating moneys to the North Dakota Antituberculous Association, with an emergency clause under- the same provisions of the Constitution. Sess. Laws 1915, chap. 7. Mr. Torson, a prominent attorney and member of the then house of representatives, introduced a bill providing for the abolition of the death penalty, which was made applicable to persons who had theretofore been convicted of murder, and in order to cover the case of Milo, then in the death cell in the state’s penitentiary, and attached to this bill was an emergency clause drafted under § 67 of the Constitution. Senator Davis, who voted for the initiative and referendum amendment, as a member of the 1913 senate, was the chairman of the committee on state affairs, to whom the Board of Begent’s Bill was *393referred, and signed a report recommending the same for passage, with certain amendments. See Senate Journal, 1915, p. 738.
It hardly appears to me, however, that the matter of the emergency clause needs to be considered at all. Surely the legislature could have-ashed the governor to submit nominations for offices which they were-about to create, and could then have provided in the bill that, when it. took effect, those persons should be entitled to hold the office who should theretofore have been nominated by the governor and approved by them. This, even though the bill did not go into effect until July the-first, was the result of the situation which is before us. State ex rel. Clark v. Irwin, 5 Nev. 111; Throop, Pub. Off. § 91.
Counsel for the petitioner himself argued, and we believe correctly,, that under § 78 of the state Constitution the appointing power of the governor of North Dakota is confined to filling vacancies in office in. cases where no other mode of appointment is provided for by the Constitution or laws for. filling the same. See State ex rel. Standish v. Boucher, 3 N. D. 389, 21 L.R.A. 539, 56 N. W. 142.
He himself, however, conceded, for the proposition is laid down by the case which he himself cites, and he himself furnished the quotation, that the appointing must vest somewhere and that somewhere is in the legislature. .“All governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government or expressly withheld from the legislature by constitutional restriction.” Ibid.
It is also clear that the State Board of Regents is not a constitutional office, but one of legislative creation merely. There can be no reason why the legislature cannot delegate the power to appoint in the same manner as they delegate the power to appoint the president of the State University and Agricultural College and the heads of the various departments. There can also be no reason why they should not themselves name the officials who shall be chosen or who shall choose them. In the-bill in question, though they delegated the power of nomination to the-governor, they desired to vest the ultimate right of choice in the senate. Why should this not be done ? And, even if the office did not take effect until the first day of July, why should they not say that the incumbents should be chosen ahead and with the advice and consent of the state senate, rather than by the governor alone ? Would there be anything out *394■of the way, indeed, for the legislature to have provided for the establishment of a normal school at Dickinson or some other place which should be opened on July the first, and whose president should take office on July first and of choosing in advance who that president should be?
The legislature certainly had the power to pass the act which is before us, and to create the office. It had an inherent power of appointment. State ex rel. Standish v. Boucher, supra; State ex rel. Richardson v. Henderson, 4 Wyo. 535, 22 L.R.A. 751, 35 Pac. 517. It is not neces.sary that an office shall already be in existence or a present vacancy exist in order that the appointing power may be exercised. There is nothing in the Constitution to prevent prospective appointments. If, indeed, as has been repeatedly held, an incumbent of a judicial office ■can be elected at the same elections at which the creation of the office or ■district is voted upon, there can certainly be no reason why the legislature, which possesses all sovereignty not limited.by the Constitution, cannot provide in the act itself who shall fill the office; that is to say, make prospective appointments, which shall take effect when the time Tor filing a referendum petition has expired, and the bill, beyond any •question of a doubt, becomes operative. State ex rel. Whitney v. Van Buskirk, 40 N. J. L. 468, 469; State ex rel. Thompson v. Winnett, 78 Neb. 379, 10 L.R.A.(N.S.) 157, 110 N. W. 1113, 15 Ann. Cas. 781; 23 Am. & Eng. Enc. Law, 347; State ex rel. Erickson v. Burr, 16 N. D. 581, 113 N. W. 705.
Even if the appointment was without authority before the time for the filing of the petition for a referendum had expired, it was ratified and approved when the act went into operation. United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547; Wells v. Nickles, 104 U. S. 444, 26 L. ed. 825.
Incidently, there has been injected into the case the suggestion that at .any rate the terms of two of the Regents will expire on the first day of •July, 1917, and the question is asked whether at such time the governor may fill the offices by appointment. The question really revolves around the meaning of the term “vacancy” which is used in § 3 of chapter 237 of the Laws of 1915, and which chapter created the Board of Regents. "Section 2 of the act provides that “the governor is empowered, and it is .hereby made his duty, on or before the 2nd day of March, a. d. 1915, to *395nominate, and with the consent of the majority of the members of the .senate in executive session, to appoint as such State Board of Begents two members thereof whose term of office shall be two years commencing with the first day of July, a. d. 1915, two members thereof whose term -of office shall be for four years commencing with the first day of July, a. d. 1915, and one member thereof whose term of office shall be for six years, commencing with the first day of July, a. d. 1915, and thereafter and during, the session of the legislative assembly, and prior to the 15th day of January in each year in which the term of office of any member so appointed shall expire, he shall in like manner nominate, and, subject to such consent of a majority of the senate, appoint a successor or .successors to such member or members of said board whose term will expire with July 1st of that year, which said appointee shall hold office for the full term of six years from and after the expiration of the full term of office for which such predecessor or predecessors were appointed. In event any nomination made by the governor to such board is not consented to and confirmed by the senate as hereinbefore provided, the governor shall again nominate a candidate or candidates for such office at any time while the legislative assembly is in session. The members of the board first so appointed shall meet at the seat of government on the first Tuesday in April, 1915, and shall organize and elect one of their members as president of such board for a term of one year. They shall also elect a competent man as secretary who shall receive not to exceed $2,500 per annum, and who shall reside during his term of office in the ■city of Bismarck.”
Section 3 provides: “The governor may remove any member of the board so appointed for incompetency, neglect of duty, immorality, malfeasance in office, or for other good cause, and in case of a vacancy in the membership of the board so appointed by the governor or his predecessor in office, whether occurring by reason of removal or otherwise, may declare the office vacant and fill the same by appointment until the convening of the next session of the legislative assembly, when he shall nominate some qualified person as a member of such board for the balance of such unexpired term and upon the consent of the senate as herein-before provided, shall appoint said nominee as a member of such board.”
It is very clear to me that the governor has no such power of appointment as is claimed- by the petitioner. I am of the opinion that the ex*396piration of a prescribed term, when coupled with the fact that tbe senate of tbe preceding legislature adjourned without- confirming successors-in office (to persons holding under a former appointment), and especially where no nominations were presented to the senate to fill such offices when the term should expire, will not operate to create a vacancy in the office which, under the statute, can be temporarily filled by the governor, and that the vacancies contemplated by the statute to be filled by him are-actual vacancies and such as arise from death, resignation, and like causes.”
This was certainly held by this court in the case of State ex rel. Standish v. Boucher, 3 N. D. 389, 21 L.R.A. 539, 56 N. W. 142, in construing § 1 of chapter 3 of the Laws of 1889, and seems to be clearly the intention of chapter 237 of the Laws of 1915.
Section 78 of the Constitution provides that “when any office shall from any cause become vacant, and no mode is provided by the Constitution or law for filling such vacancy, the governor shall have power to fill such vacancy by appointment.”
We have not, in North Dakota at any rate, “set up Kings to rule over-us,” and the governor has no royal prerogatives. His power are not inherited or inherent, but are only such as have been given to him. Among these powers granted are not to be found the general power of appointing to public office. That power is reserved to the legislature. See State ex rel. Standish v. Boucher, supra; Fox v. McDonald, 101 Ala. 51, 21 L.R.A. 529, 46 Am. St. Rep. 98, 13 So. 416; State ex rel. Sherman v. George, 22 Or. 142, 16 L.R.A. 737, 29 Am. St. Rep. 586, 29 Pac. 356; State ex rel. Richardson v. Henderson, 4 Wyo. 535, 22 L.R.A. 751, 35 Pac. 517. The power of the governor is merely to fill vacancies, and even this power is limited.
This is not only the general fact and rule, but was certainly the intention of the act which is before us. It provides that, although the legislature in each year meets in the month of January, and the terms of office of the members of the Board of Begents do not expire until the 1st of July of the several years, nevertheless, “during the session of the legislative assembly, and prior to the 15th day of January in each year in which the term of office of any member so appointed shall expire, he [the governor] shall in like manner nominate, and subject to such consent of a majority of the senate, appoint a successor or successors to such *397member or members of said board whose term will expire with July 1st of that year. . . .” It further provides that “in event any nomination made by the governor to such board is not consented to and confirmed by the senate as hereinbefore provided, the governor shall again nominate a candidate or candidates for such office at any time while the legislative assembly is in session."
A perusal of these sections convinces me that the legislature chose to •reserve to itself, or rather to its senate, the ultimate right of appointing the respective members of the Board of Regents. It would be a travesty on the law and an insult to the legislature to hold that the governor, by "the simple expedient of failing to submit nominations and to obey the commands of the statute, could usurp kingly prerogatives and secure to himself the unlimited and uncontrolled power of appointment. If he could refuse to submit nominations at any session of the legislature, and then could hold the office to be vacant and make a recess appointment ■on his own behalf, he could take the power from the legislature altogether and nullify the statute altogether. This would be true, not only of the statute before us, but of all similar statutes, and the governor, by virtue of this supposed unlimited appointing power, would be an autocrat.
So, too, it seems to be well established that the word “vacancy,” as .generally used, is not applicable in such a case. See State ex rel. Standish v. Boucher, supra; State ex rel. Freeman v. Carvey, — Iowa, —, 154 N. W. 934; State ex rel. Richardson v. Henderson, supra.
Section 78 of the Oonstitution expressly limits the sole and unlimited •appointing power of the governor to cases where “no mode is provided by ■the Constitution or law for filling the vacancies.” In the case before us the law, that is §§ 2 and 3 of chapter 237 of the Laws of 1915, has expressly provided the mode. These sections have expressly provided that the appointment shall be made in advance and at the immediately preceding session of the legislature, and with the consent of the senate. State ex rel. Richardson v. Henderson, supra.
The right of the governor to declare a vacancy, indeed, and to fill a vacancy, seems to be expressly considered in § 3 of chapter 237 of the Laws of 1915. It is very apparent that the vacancy can in only special instances be created by the governor himself, and that it is in those cases .alone that he has the power to fill the same. Section 3 provides that “the *398governor may remove any member of the board so appointed for incompetency, neglect of duty, immorality, malfeasance in office, or for other good cause, and in case of a vacancy in the membership of the board so appointed by the governor or his predecessor in office, whether occurring by reason of removal or otherwise, may declare the office vacant and fill the same by appointment until the convening of the next session of the legislative assembly, when he shall nominate, etc.”
In the case at bar, as we understand the record, it seems to be admitted that there is no charge of incompetency, neglect of duty, immorality, or malfeasance in office. Nor can the words, “for other good cause,” be made to include any other cause than that of the general nature of the causes mentioned. It is elementary, indeed, that words of a general nature which follow a specific enumeration must be construed as applying to acts or things or causes of the nature of those which are enumerated. Surely, no immorality or breach of duty on the part of the members of the board exists by reason of the failure of the governor to submit the nominations of their successors to the senate. So, too, he is only authorized to fill a vacancy which occurs by reason “of removal or otherwise,” and the word “otherwise” must be construed to apply to an act similar to that of removal, and removal is only authorized under the conditions enumerated.
It is true that in a number of the cases, including the case of State ex rel. Standish v. Boucher, supra, emphasis is laid upon the fact that the officers shall hold their offices until the time fixed and “until a successor is appointed and qualified.” None of them, however, go to the extent of holding that the decision would be different if this clause were lacking. It seems, indeed, to be the general law, at least the law that is supported by the better reason and the greater weight of authority, that all public officers who have public duties to perform which are of moment to the state, and the discontinuance of which will be fraught with public inconvenience, are entitled to hold their offices until their successors are elected and qualified, unless some restrictive words are .expressly or impliedly used in the Constitutions or statutes. There are no such restrictive words in the Constitutions or statutes of North Dakota, and the statute itself, as I have before intimated, clearly evidences an intention that the appointment shall be made by the senate, nd not by the govern- or. See Throop, Pub. Off. § 325, and cases cited; 23 Am. & Eng. Enc. *399Law, 412, and cases cited; Brady v. Howe, 50 Miss. 607; People ex rel. Stratton v. Oulton, 28 Cal. 44; State ex rel. Richardson v. Henderson, 4 Wyo. 535, 22 L.R.A. 751, 35 Pac. 517.
I am not unmindful of the case of State ex rel. Wood v. Sheldon, 8 S. D. 525, 67 N. W. 613. In that case, however, no provision whatever was made for the appointment of the successor.
L am of the opinion that the petition should be denied.