(concurring specially). I concur in,the proposition announced in the syllabus, and in the result reached in the opinions prepared by my associates Mr. Justice Robinson and Mr. Chief Justice Bruce. I desire, however, to base my conclusion upon somewhat different grounds. And in view of the importance of the questions involved, I deem it my duty to discuss these at some length.
The bill for the State Board of Regents Act was introduced in the house of representatives by the committee on education, on February 8th, 1915. As introduced, the bill authorized and empowered “the governor . . . on or before the 21st day of February a. d. 1915, to nominate, etc.” When the bill was placed on its third reading and final passage in the house of representatives, on February 17th, 1915, certain amendments were adopted by unanimous consent, among others, one extending the time in which the governor makes nominations of members of the State Board of Regents to February 27th. (See House Journal, 1915 p. 816.) The bill was placed on its first and second reading in the senate, and referred to the committee on state affairs on February 19th, 1915, and reported by the committee with recommendation to pass on February 25th, with three proposed amendments, among which was one extending the time in which the governor make his nominations of members of the Board of Regents to March 2nd (Senate Journal, p. 738). The report was adopted without dissent, and the bill was thereafter placed on its third reading and final passage, and passed in the senate, on February 25th, 1915, with certain amendments. The house refused to concur in some of the senate amendments, and the bill was referred to a conference committee on February 27th, 1915. The bill as amended by the conference committee was passed by the house on March 1st, 1915 (see House Journal, p. 1374), and by the senate on March 2nd (see Senate Journal, p. 892).
*400The present controversy arises, and involves the validity of the first .appointments, made under § 2 of the 'act, which reads as follows": “The State Board of Regents shall consist of five members, all of whom shall be qualified electors and taxpayers of the state, appointed for their fitness, and ability to efficiently serve the people of the state in such capacity, and one member and not more than two of such board shall be appointed from each congressional district, and not more than one member shall be appointed from any one county. No more than one person who is an alumnus of any of the institutions under the control of such board ■shall be a member thereof at the same time, and any person who has been ■connected with any of such institutions, either as a member of any normal board of control, or board of trustees, or as an officer or instructor, shall be eligible to appointment as a member of such board within two .years after such connection with such institution has been terminated.
“The governor is empowered, and it is hereby made his duty, on or before the 2nd day of March a. d. 1915, to nominate, and with the consent of the majority of the members of the senate in executive session, to appoint as such State Board of Regents 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 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 *401and 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.”
The bill as introduced provided: “The members of the board first so appointed shall meet at the seat of government on the first Tuesday in July, 1915, and shall organize and elect one of their members as president. . . .” This was amended by unanimous consent by the house of representatives when the bill was placed on its third reading and final passage, so as to provide for the first meeting and organization of the board to take place on the first Tuesday in April, 1915.
There was no intent on the part of the legislature, however, to bring the educational institutions under the control of the State Board of Regents prior to July 1st, 1915, on which date, under the express terms of the statute, the official terms of the members of the board commenced. And in order to obviate any chance for a misunderstanding on this point, the first sentence of § 1 of the bill was amended at the same time the amendment last above referred to was made by inserting therein the words “July 1st, 1915,” as the concluding words in such sentence (see House Journal, p. 816), thereby clearly and unquestionably designating July 1st, 1915, as the date when the educational institutions of the state were to come under the control of the State Board of Regents, and the actual and active discharge of the official duties of such board commence.
The manifest purpose of providing for the organization of the board in April, 1915, was to enable the board to become familiar with its duties and consequently perform better service. This legislative intent was further disclosed in the last section of the act, which declared an emergency to exist “in this, that this act is deemed of immediate importance in order that the board hereby created may he in a position to take full control of such institutions on July lst¿ a. d. 1915.”
The sole object of statutory construction is to arrive at and ascertain the legislative intent. When that intent has been ascertained, there is no room for further interpretation. Can there be any question as to the intent of the legislature with respect to the manner in which the first members, and for that matter the succeeding members, of the Board of Regents should be appointed ? Obviously none. It is difficult to understand how language could have been more specific and to the point than *402that which the legislature employed in the section quoted above. It will be noted that the legislature carefully prescribed the qiialifi cations of the members of the Board of Regents, and even designated the geographical location of their places of residence.
The act under consideration designated a specific time, and provided a specific manner, in which the members of the Board of Regents must be appointed. It is a well-settled principle of construction that when a statute or a constitutional provision directs that a thing be done by certain persons and in a certain manner, this affirmative contains a negative, that it shall not be done by other persons or in another manner. As was said by this court in State ex rel. Frich v. Stark County, 14 N. D. 368, 103 N. W. 914: “It is a rule applicable alike to statutory and constitutional law that when the law directs something to be done in a given manner or at a particular time or place, then there is an implied prohibition against any other mode or time or place for doing the act.” See also 36 Cye. 1122; Sutherland, Stat. Contr. 2d ed. § 630. The power of the governor to appoint members of the Board of Regents is, by the very terms of the act, conditional, and may be exercised only under the conditions prescribed by the act itself.
“On general principles,” as is said by Woodbury, J. (Johnston v. Wilson, 2 N. H. 205, 9 Am. Dec. 50), “the choice of a person to fill an office constitutes the essence of his appointment.” The legislature in the plainest possible language said that the members of the Board of Regents to be first chosen should be chosen in the manner which it prescribed. As we have already seen, this provision was deemed of sufficient importance, so that the bill was amended on two different occasions, once by the house of representatives and once by the senate, in order to make it possible to carry it into effect. The amendment disclosed that whatever changes were proposed or made, or whatever differences of opinion may have existed, none existed so far as this particular provision was concerned, and the legislative intent and policy as thus declared were steadfastly and consistently adhered to from the introduction of the bill until its final passage. And so far as the proceedings of the legislative assembly show, not a single member was out of harmony therewith. When the date was changed from February 21st, to February 27th, by the house of representatives on February 17th, 1915, the journal shows that there were ninety votes east in the affirmative, and that the unani*403mous consent was given to the proposed amendment. And the records show that not a single vote was ever cast in the negative, in either house at any time this bill was moved for passage. It is interesting to note in this connection that Mr. Bronson, one of the present attorneys for the relator, and then a member of the state senate, twice cast his vote in favor of the measure, including the amendments. (See Senate Journal, pp. 746, 892.)
It is conceded that the respondents in this case were nominated and appointed in strict accordance with the provisions of the State Board of Regents Act; but it is contended that the act was not in effect at the time the appointments were made, and that it was beyond the constitutional power of the legislature to authorize and provide for the appointment of members of the State Board of Regents until the act by which the offices were created had become an existing and operative law. These contentions of the relator are based solely on the proposition that the initiative and referendum amendment to § 25 of the Constitution, by necessary implication, repealed, in whole or in part, § 67 of the Constitution, which provides: “No act of the legislative assembly shall take effect until July 1st, 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 ail the members present in each house, otherwise direct.”
The opinions heretofore written by other members of this court are devoted almost exclusively to a discussion of the question of whether the emergency clause provided for by § 67 of the Constitution was impliedly repealed by the initiative and referendum amendment to § 25 of the Constitution. A careful consideration of the questions involved leads me to the conclusion that this question, while interesting, is not necessarily involved, nor is it necessarily determinative of the validity of the appointments of the respondents, and I express no opinion thereon.
I recognize the axiomatic principle of the American system of constitutional law, that the courts have inherent authority to determine whether statutes transcend the limits imposed by the Federal and state Constitutions, and that where a statute transgresses the authority vested in the legislature by the Constitution, it is not only the right, but the duty and sworn obligation, of the judiciary to declare such act unconstitutional and void. While judicial authority to determine the con*404stitutionality of legislative enactments has become a fundamental principle of our system of constitutional law, the rules by which the courts must be guided in determining such question are equally fundamental. The primary duty of the courts is to construe statutes with reference to the Constitution, and it is only when the Constitution is clearly violated by a provision of the statute that such provision may be declared unconstitutional. Escambia County v. Pilot Comrs. 52 Fla. 197, 120 Am. St. Rep. 196, 42 So. 697.
It is true the legislature in performing its duties is governed by and subject to the provisions of the Constitution, and may not do any act which the Constitution forbids. But it is equally true “that all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of government, or expressly withheld from the legislature by constitutional restrictions.” State ex rel. Standish v. Boucher, 3 N. D. 389, 21 L.R.A. 539, 56 N. W. 142.
“While it is a truism to say that the duty to enforce the Constitution is paramount and abiding,” said White, Ch. J. (Wilson v. New, 243 U. S. 332, 61 L. ed. —, L.R.A. — , —, 37 Sup. Ct. Rep. 298), “it is also true that the very highest of judicial duties is to give effect to the legislative will, and in doing so to scnupulously abstain from permitting subjects which are exclusively within the field of legislative discretion to influence our opinion or to control judgment
For it is a fundamental rule of constitutional law that every presumption is in favor of the constitutionality of a statute enacted by a legislature. And this presumption becomes conclusive unless it is clearly shown that the enactment is prohibited by the state or Federal Oonstitutiob. State ex rel. Linde v. Taylor, 33 N. D. 76, 156 N. W. 564. A statute is not to be held a violation of the fundamental charter established by the people in their Constitution, unless so clearly outside the power conferred upon the legislature as to be free from reasonable doubt in that regard. It must be assumed that the legislature intended to act within its lawful bounds, and this assumption cannot be overthrown unless the statute unmistakably oversteps these bounds by manifest and plain terms. Accordingly, “it has been declared that in no doubtful case should the courts pronounce legislation to be contrary to the Constitution ; that to doubt the constitutionality of a law is to resolve such doubt in favor of its validity; that all statutes are of constitutional *405validity unless they are shown to be invalid; and that the courts will resolve every reasonable doubt in favor of the validity of the enactment.” 6 R. C. L. § 98, “Constitutional Law.” Nor it must be remembered that the members of the legislature and the governor are also required to take an oath to support the Constitution, and it is presumed that they have obeyed this oath, and have intended to comply with the provisions of the Constitution. 6 R. O. L. § 99. “Constitutional Law.” And it has been said by a high authority that “great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 48 L. ed. 971, 24 Sup, Ct. Rep. 638.
In the case at bar the statute under consideration was adopted by the unanimous vote’of all members of both branches of the legislature who were present and participated in the proceedings at the time when the votes were taken. The validity of the act or any of its provisions was never questioned. It is interesting to note in this connection that at least eight of the members of the house of representatives and eight of the senators who voted in favor of the Board of Regents Act were lawyers, and among such was one of the eminent counsel for the relator in this proceeding. Certainly, it cannot be assumed that any of these members voted in favor of the provision with a desire or intent either to violate or to evade the provisions of the Constitution.
The presumption of constitutionality applies with unusual force when the object of the legislative enactment is one peculiarly within legislative control. Nor “the legislature is given a large discretion in reference to the means it may employ to promote the general welfare. It is for the legislature alone to judge what means are necessary and appropriate to accomplish an end which the Constitution malees legitimate.” 6 IA C. L. p. 155. And where the legislature deals with a subject peculiarly within its sphere, courts should be “cautious about pressing the broad words of constitutional provisions to a drily logical extreme,” and judges should be slow to read into constitutional provisions “a nolumus mature as against the lawmaking power.” Noble State Bank v. Haskell, 219 H. S. 104, 55 L. ed. 112, 114, 32 L.R.A.(N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487.
*406The question of whether the offices of members of the State Board of Eegents should be created and how the incumbents thereof should be selected was concededly a political question, the determination of which rested solely with the legislature. This is not a case, therefore, where the legislature has sought to infringe upon either the executive or judicial departments, or legislate upon a matter forbidden by the 'Constitution. On the contrary the object of the legislation was one resting peculiaidy within legislative discretion. The legislature declared by implication that the best interest of the state demanded that the various educational institutions be placed under the control of one joint board. It further declared that in its judgment the best way to select the members of such board was through nominations by the then executive, to be confirmed by the then sitting senate, — a ‘procedure which is embodied in the Federal Constitution itself. These were purely legislative questions, and this court cannot say that the legislative judgment was wrong. Ibid.
In this state it is well settled that even the power to appoint to office is not necessarily an executive function, but is an attribute of sovereignty. And “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 restrictions.” . State ex rel. Standish v. Boucher, 3 N. D. 389, 21 L.R.A. 539, 56 N. W. 142. And in absence of express constitutional restriction, an office created by the legislature is wholly under legislative control. Sinclair v. Young, 100 Va. 284, 40 S. E. 907; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929. And the legislative power to regulate and provide the manner of mating original appointments to such office is absolute unless restrained by some constitutional provision. People v. Osborne, 7 Colo. 605, 4 Pac. 1074. See also State ex rel. Standish v. Boucher, supra. The legislature may make such appointment itself or confer the power to do so upon such persons or bodies as it in its wisdom sees fit to designate. Scholle v. State, 90 Md. 729, 50 L.R.A. 411, 46 Atl. 326; Cunningham v. Sprinkle, 124 N. C. 638, 33 S. E. 138; Sinking Fund Comrs. v. George, 104 Ky. 260, 84 Am. St. Rep. 454, 47 S. W. 779. This seems to be the universal rule under a Constitution like ours, where the executive is not given general appointing power. This principle was recognized by the *407last legislative assembly and the present chief executive in the act providing for insurance of bank deposits (Senate Bill No. 217), as in this act the legislature provided that the appointive members of the Guaranty Bund Commission, including the original and all succeeding appointments, “whether to fill a vacancy or otherwise, shall be made by the governor” from a list of nine men, to be selected by the banks directly affected by the provisions of the act, said banks to be members •of the corporation known as the “North Dakota Banker’s Association.” It will be noted that the appointive or selective power in the first instance is exercised by the banker’s association, and the governor is restricted to a selection of three out of nine men designated by such Association.
It has been held by the highest court in the land that no person has or acquires any vested interest or right in an office of which the legislative department may not deprive him, unless legislative action is prohibited by express constitutional restriction. Crenshaw v. United States, 134 U. S. 99, 33 L. ed. 825, 10 Sup. Ct. Rep. 431; Taylor v. Beckham, 178 U. S. 577, 44 L. ed. 1200, 20 Sup. Ct. Rep. 1009. Nor is there any constitutional restriction, state or Federal, upon the legislative power to enact retrospective legislation with respect to any matter contained in § 2 of the State Board of Regents Act. Satterlee v. Matthewson, 2 Pet. 380, 7 L. ed. 458; Watson v. Mercer, 8 Pet. 88, 8 L. ed. 876; Cooley (Cooley, Const. Lim. 6th ed. pp. 331, 332) says: “When an office is created by statute, it is wholly within the control of the legislature. . . . The term, the mode of appointment, and the compensation may be altered at pleasure, and the latter may be even taken away without abolishing the office.”
It may be observed that the legislative power over appointment to statutory offices was announced by this court more than twenty years prior to the adoption of the initiative and referendum amendment to the Constitution, and the legislative records fail to disclose even a proposed change in the fundamental law to curtail or remove this power.
The statute under consideration was complete so far as legislative action was concerned. At the time the appointments were confirmed by the senate and the commission issued to respondents, every act required by the Constitution to be performed by the legislative assembly and by .the governor of the state in the enactment of laws had been performed. *408There was no way in which the governor or the legislature could destroy the piece of legislation which they had created, except by another enactment repealing the former act. And the only way in which it could be destroyed or its effectiveness retarded under the referendum provision of the Constitution was by affirmative action by the people. If no such action was taken, the act concededly would, and did, become fully effective and operative for all purposes on and after July 1st.
If the contentions of the attorney general are correct, the legislature has been shorn of power to designate a particular mode of appointment of a statutory officer in an act creating an office, unless the act of appointment is delayed until after July 1st; or the law is one for the immediate preservation of public peace, health, and safety, and a section so stating is contained in the law and adopted by a two-thirds vote of all members elected to each house, on a separate roll call.
It is suggested that the situation presented in this case may be obviated by the enactment of a general law giving the executive larger powers with respect to making appointments. This suggestion, however, implies a limitation upon the legislative power with respect to statutory offices heretofore unknown in this state. And it also presents the anomalous proposition that one legislature may by a general law in a degree bind a succeeding legislature with respect to a matter peculiarly within legislative control. It is doubtless proper for one legislature to adopt a general law to serve as a rule to be applied with respect to appointments to statutory offices in cases where no contrary expression is made by a succeeding legislature. This is to prevent chaos and uncertainty in the event the legislature which creates the office provides no mode of appointment. But it is, to say the least, a novel suggestion that one legislature may by general law provide for a mode of filling a statutory office which a succeeding legislature might create and which it, in absence of such general law, would be powerless to fill in the manner proposed by such general law, because of lack of authority to direct it to be done in that particular manner or at that particular time.
Even according to the attorney general’s contention, however, the legislature could have provided that the appointments here involved be made in the manner designated in the act at any time after July 1st; or the governor could, under the terms of the act as it stands, have called *409a special session of the legislature after July 1st, and submitted such appointments to the senate at that time, and if then confirmed the appointments so made would have been entirely valid. The sole complaint in that they were not made in a certain manner, or at a certain time. It is conceded that they could have been properly made in the manner in which they were made after July 1st; or that they could have been made at the time they were made if a different mode had been chosen. Can it be that the people intended to bring about such insults by their adoption of the initiative and referendum. amendment to the Constitution ? I think not. And the legislative records furnish the most persuasive evidence that the framers of the initiative and referendum amendment had no such intent. These records show that upon every roll call taken upon the Board of Begents Act every member present in both houses voted in the affirmative. The records further show that a majority of the senators who voted for the act were members of the state senate during the 1913 session of the legislature, and voted upon the concurrent resolution providing for the initiative and referendum amendment.
If a construction would lead to an unreasonable result it is to be avoided if possible, for “a bad result suggests a wrong construction.” People ex rel. Beaman v. Feitner, 168 N. Y. 360, 366, 61 N. E. 280. “In the construction of all laws we look to the old law, the mischief and the remedy * . . no just rule of interpretation requires the court to go further, by applying the remedy to a case not within the mischief, unless the words of the law are too imperative to admit of construction." 4 Enc. U. S. Sup. Ct. Rep. 49.
It is the duty of the court to interpret, not to make, laws. Legislative enactments must be sustained and enforced unless they clearly contravene the provisions of the Constitution. While the question has not been argued, it seems to me there is some doubt if the court could .eliminate the provisions assailed and sustain the remainder of the act. It is true that a statute may be constitutional in one part and unconstitutional in another part, and that if the invalid part is severable from the rest, the portion which is constitutional may stand, while that which is unconstitutional is stricken out and rejected; and if after eliminating the invalid portions, the remaining provisions are sufficient to be operative and accomplish the proper purposes, it does not neees*410-sarily follow that the whole act is void. This rule is nevertheless subject to the fundamental principle that the courts cannot constitute themselves into a lawmaking body. And the question as to whether the portions of a statute which are constitutional shall be upheld while -other divisible portions are eliminated as unconstitutional is primarily ■one of intention. And the constitutional provisions cannot be held valid if it appears that they would not have been adopted without the -other parts. 6 R. C. L. p. 124. As said by this court in McDermont v. Dinnie, 6 N. D. 278, 69 N. W. 294: “If the different portions of the statute are so interwoven and interdependent that the rejected ■portions furnish to an appreciable extent the consideration or inducement for the passage of the act, then the entire enactment must be rejected.” The United States Supreme Court in discussing a similar proposition in Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185, 5 Sup. Ct. Rep. 903, said: “It is undoubtedly'true that there may be -cases where one part of a statute may be enforced as constitutional, and .another be declared inoperative and void because unconstitutional; but these are cases where the . . . court is able to see and to declare -that the intention of the legislature was that the part pronounced valid should be enforceable, even though the other part should fail. To hold ••otherwise would be to substitute for the law intended by the legislature -one they may never have been willing by itself to enact.”
The primary object in the construction of all statutory and constitutional provisions is to ascertain and carry into effect the real purpose for which they were adopted. The sole purpose of § 67 of the Constitution was to secure a sufficient interval between the date of the passage of an act and its going into effect to enable the public to become acquainted with its terms and conform thereto (State ex rel. Cummings v. Trewhitt, 113 Tenn. 561, 82 S. W. 483), with the power reserved in and granted to the legislature to put an act into immediate effect by a two-thirds vote of all members present where an emergency exists.
This section merely fixed a date when a legislative enactment takes •effect in the absence of a legislative declaration fixing some other date. There is nothing in § 67 of the Constitution, however, to prevent the legislature from fixing a date subsequent to July 1st for the act to become operative. The legislature might make the act become operative at a considerable later date, or make the date of its becoming opera-*411five depend upon a contingency. McPherson v. State, 174 Ind. 60, 31 L.R.A.(N.S.) 188, 90 N. E. 610; Foy v. Gardiner Water Dist. 98 Me. 82, 56 Atl. 201; Phoenix Ins. Co. v. Welch, 29 Kan. 672; 6 R. C. L. p. 167; 36 Cyc. 1201. And the legislature, unless prohibited by the Constitution, may direct that different parts of the same statute shall go into effect at different times. People v. Osborne, 7 Colo. 605, 4 Pac. 1074; State ex rel. Wheeler v. Stuht, 52 Neb. 209, 71 N. W. 941; 36 Cyc. 1201.
The referendum provision in the amendment to §' 25 of the Constitution was merely intended to reserve to the people the power to refer and reject laws enacted by the legislature.
This power is reserved for the people itself in its sovereign capacity for the purpose stated, and must be invoked in the manner and within ■the time prescribed by the constitutional provisions reserving the power. It was not intended to take away any power theretofore vested in the legislature and place the same elsewhere.
It has been held that unless the referendum power is invoked within the time prescribed in the Constitution, “the right to have the same referred to the people for judgment” is lost, and it is then “too late ■thereafter to attack the emergency character of that act, either as to the vote thereon, or otherwise.” Miami County v. Dayton, 92 Ohio St. 215, 110 N. E. 728.
In the case at bar the referendum power was not invoked, and the purpose for which such power was reserved is not involved.
Section 25 of the Constitution relates to legislative functions only. The same is true of the initiative and referendum amendment thereto. The amendment does not purport to reserve the power of initiative and referendum to any acts of the legislative assembly except such as are legislative in character. No one would contend for instance that an impeachment resolution adopted by the house of representatives, or a •concurrent resolution for a legislative investigation adopted by both the house and the senate, or any act of that nature, would be subject to referendum. “Legislation as here contemplated,” said Eakin, J., ■speaking for the supreme court of Oregon (Long v. Portland, 53 Or. 92, 98 Pac. 1112), “must be considered in the sense of general laws, namely, rules of civil conduct prescribed' by the lawmaking power and of general application. By Opinion of Justices, 66 N. H. 629, 33 *412Atl. 107 6, the law is said to be a rule, — not a transient, sudden order to and concerning a particular person, but something permanent, uniform, and universal.”
While it is true that in this state the legislature has power not only to create statutory offices and prescribe the mode of appointment of incumbents thereof, but also to appoint such officers, it does not follow that the latter function is necessarily legislative in character, or must be exercised by formal legislative enactment. And it has been held that the appointment to office by a legislative body is not a legislative act to which the veto power of the chief executive extends. Erwin v. Jersey City, 60 N. J. L. 141, 64 Am. St. Rep. 584, 37 Atl. 732. See also Ogden City v. Bear Lake & River Waterworks & Irrig. Co. 28 Utah, 25, 76 Pac. 1069; Brazell v. Zeigler, 26 Okla. 826, 110 Pac. 1052; Globe v. Willis, 16 Ariz. 378, 146 Pac. 544.
The power to appoint is impressed with characteristics of an executive rather than that of a legislative nature. The power exists in the legislature, not necessarily because the act is legislative in character, but because the legislature possesses all governmental sovereign power except such as is granted to the other departments of the government, or expressly withheld from it by constitutional restrictions. As was well said by the supreme court of Wyoming: “The power of the executive and judicial departments is a grant, not a limitation, while the powers of the legislative department are absolute except as restricted and limited by the Constitution which the people have adopted. . . . This is elementary, and too familiar to need elaboration, that, while the judiciary and the executive have only enumerated powers, the sway of the legislative department is supreme, except as controlled by the limitations imposed by the organic law.” State ex rel. Richardson v. Henderson, 4 Wyo. 535, 22 L.R.A. 751, 35 Pac. 520.
The principle was also clearly stated by this court-in State ex rel. Standish v. Boucher, 3 N. D. 389, 396, 21 L.R.A. 539, 56 N. W. 142, where Mr. Chief Justice Wallin, speaking for the court, said: “Just at this point it may naturally be asked, since the power of the governor to appoint to office extends only to cases of vacancies not otherwise provided for, and since there is no express grant of appointing power in the Constitution to any other functionary or department of government, where does the power of appointment of officers and their successors in *413office rest ? The power to appoint to office is an attribute of sovereignty. All attributes of sovereignty essential to the administration of government must be vested in tbe several departments of government by tbe people; otherwise tbe government founded by tbe people would not constitute a full grant of governmental power. Sucb government would, to that extent, be defective, for tbe reason that tbe people themselves, in their collective capacity, exercise no governmental functions. Now, we have seen that tbe power to appoint to tbe offices in question is not vested by tbe Constitution in tbe governor. Neither is any appointing power vested in tbe judicial department, except to appoint certain court officials. Unless, therefore, this power resides in tbe legislature, it is lodged in no part of tbe government. As to this it will suffice to say that 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 restrictions
I agree that a legislative enactment does not become effective as a rule of conduct until it has become a valid and existing law. But I do not agree that tbe legislature is powerless to incorporate in a legislative enactment provisions incident to tbe subject-matter of tbe legislation and require action to be taken under sucb provisions even before tbe act becomes operative as a law. Bor instance, where a statute by its terms is to become operative upon tbe happening of a contingency, sucb as tbe approval by a vote of tbe people, it frequently happens that tbe legislature in tbe very terms of tbe act prescribes tbe acts to be done, and it has been held that tbe provisions in sucb act will control where they conflict with other general statutes applicable to tbe same subject-matter. People ex rel. Brady v. La Salle Street Trust & Sav. Bank, 269 Ill. 518, 110 N. E. 38. It is true sucb acts are, in a measure, part of tbe process of legislation, but it is equally true that sucb proceedings rest in legislative discretion. So it is with tbe procedure outlined in tbe State Board of Regents Act for tbe appointment of tbe first members of tbe board. Tbe legislature bad power to make sucb appointment itself or to designate some other mode in which it could be made. Possessed of this power, it declared in plain and unmistakable language — that it desired to have tbe appointments of tbe first members of tbe board made prospectively by tbe then governor and confirmed *414by tbe then sitting senate for tbe official terms appointed by tbe act, to-commence on July 1st, 1915.
It has frequently been held by eminent courts that a prospective appointment to a new, or to fill a vacancy certain to occur in an existing, public office, made by a body which as then constituted is empowered to-make such original appointment at tbe time tbe office comes into existence or to fill tbe vacancy when it arises, is, in absence of express law-forbidding it, a valid appointment, vesting title in tbe appointee. State ex rel. Whitney v. Van Buskirk, 40 N. J. L. 463; People v. Blanding, 63 Cal. 333; State ex rel. Childs v. O’Leary, 64 Minn. 207, 66 N. W. 264; Oberbaus v. State, 173 Ala. 483, 55 So. 898. See also 29 Cyc. 1373; Mechem, Pub. Off. § 133; Stuhr v. Hoboken, 47 N. J. L. 147; Throop, Pub. Off. § 93 ; 23 Am. & Eng. Enc. Law, 347. In discussing-this proposition in Oberbaus v. State, supra, the supreme court of Alabama said: “We have carefully examined tbe authorities on this-proposition, and, as there is no material conflict among them, it is not necessary to here reproduce their language or reasoning. They clearly settle tbe law to tbe effect that tbe appointing power cannot forestall tbe rights and prerogatives of its own successor by appointing successors-to officers whose official terms expire contemporaneously with or after tbe expiration of tbe term of the appointing power; but where, by law or personal action, the office to be filled by appointment must become vacant by the expiration of the incumbent’s term or by his withdrawal during the term of the appointing power, a prospective appointment thereto, if not forbidden by law, may be made at a convenient season, before the actual expiration.”
Tbe American and English Encyclopedia of Law (23 Am. & Eng-Enc. Law, 2d ed. 347) states tbe rule as follows: “It is a common practice and undoubtedly proper for tbe appointing power, when tbe necessity for tbe exercise of tbe power is ascertained, to make appointments prior in time to that at which tbe term of office of tbe appointee is to begin, where the appointing power of the officer or body making-the appointment will continue until the term of the appointee is to begin. Where, however, tbe appointing power of tbe officer or body making tbe appointment will expire before tbe term of office of its appointee will begin, and vest in its successors, it cannot forestall tbe *415riglit and prerogative of its successors by making appointments to suck office.”
The reason for the rule which forbids a prospective appointment-obviously does not exist in this case. And it is a maxim of our jurisprudence that “when the reason of a rule ceases, so should the rule itself.” Comp. Laws 1913, § 7244.
That an officer may be lawfully nominated and elected to an office-not in existence at the time of such nomination or election was recognized in this state in the acts creating the ninth and tenth judicial districts; which acts provided that such districts should not come into-existence until the election and qualification of the judges thereof, such judges to be chosen at the general election held in November, 1908 (see-Laws 1907, chaps. 161, 162). And this principle as embraced in these-laws received at least the tacit approval of this court in State ex rel. Erickson v. Burr, 16 N. D. 581, 113 N. W. 705. Under these laws-judicial candidates were nominated at the primaries held in June, 1908, and judicial candidates were voted upon at the general election held in November, 1908, for, and elected to, judicial offices which were-not then in existence. The right to make prospective appointments has frequently been recognized in this state, and was even recognized by the-present chief executive and the members of the present state senate, for-on March 2d, 1917, Governor Frazier nominated and the senate confirmed appointments for the offices of members of the state board of" control, such appointments to become effective and the terms of office-to commence on June 18th, 1917, and July 1st, 1917, respectively. In fact the Board of Regents Act provides that all regular appointments of members of the board must be made and confirmed during the-session of the legislature preceding the commencement of the terms of’ the respective members.
In the case of State ex rel. Thompson v. Winnett, 78 Neb. 379, 10 L.R.A.(N.S.) 157, 110 N. W. 1113, 15 Ann. Cas. 781, the supreme-court of Nebraska held that where an office is created by a constitutional amendment, the legislature may properly permit the people to elect am incumbent to fill such office at the same election at which the constitutional amendment is submitted for adoption or rejection. In discussing-the question the court said: “It. will be conceded that, where there is no office, there can be no officer. Constitutions and amendments there*416to are created by tbe vote of tbe people, and not by a canvass of tbat vote, nor by the official declaration of tbe result. If tbis amendment was adopted, it was when a majority of tbe electors bad voted in its favor, and, when tbat occurred, it became a part of tbe Constitution, and tbe office of state railway commissioners existed. By tbe same act of tbe people tbat made tbe amendment a part of tbe fundamental law, and created tbe office, these respondents were elected to fill tbat office. Both matters might properly be submitted to the electors at the same election. This is in accord with universal precedent both in this and in other states. Tbe practice was introduced into tbis state by tbe 6th section of tbe enabling act.” Comp. Stat. 1903, ¶ 114. Delator’s counsel, however, contend tbat tbe principle announced by tbe Nebraska supreme court is based largely upon tbe practice introduced by tbe Enabling Act of tbat state, and consequently tbat tbis case is not applicable or of any value as authority in tbis state. An examination of tbe 6th section of tbe Enabling Act of Nebraska discloses tbat Congress expressly granted power to tbe Nebraska constitutional convention to submit tbe question of tbe adoption of tbe Constitution and tbe election of state officers at tbe same election.
It is true no such provision is contained in tbe Enabling Act of tbis state. Tbe Enabling Act under which tbe North Dakota constitutional convention acted merely provided “tbat tbe constitutional conventions may, by ordinance, provide for tbe election of officers for full state governments, including members of tbe legislatures and representatives in tbe 51st Congress.” Enabling Act, § 24.
But tbe North Dakota constitutional convention, even though no express authority was granted to it to do so, nevertheless provided tbat state officers, members of tbe legislature, and even clerks of tbe district courts in tbe various counties in tbe state be chosen at tbe same election at which tbe Constitution was submitted for approval or rejection. Schedule § 12. “Congress bad no knowledge tbat any candidates for office would be voted for at tbe same election,” at which tbe Constitution was submitted for ratification. There was as a matter of fact two separate elections, although both were held at tbe same time and utilized tbe .same election machinery. One election was held to determine whether tbe proposed Constitution should be adopted or rejected; tbe other to select officers. Tbe two elections were as distinct as if they *417had been held upon two separate dates. Tbe votes cast for officers could not be taken into consideration in determining whether tbe Constitution or articles submitted separately bad received a majority of tbe votes cast at tbe election. State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883.
The proposed Constitution could not bave become effective for any purpose unless it bad received tbe approval of tbe people. It was merely a proposed law at tbe time it was submitted, and tbe election of officers would, of course, bave been an absolute nullity if tbe Constitution bad been rejected. Tbe constitutional convention was acting under, and called into being by, tbe Enabling Act. It was acting under a grant of powers. Wells v. Bain, 75 Pa. 39, 15 Am. Rep. 563. Tbe respondents were appointed under tbe terms of a legislative enactment wbicb was complete so far as tbe legislature and governor were concerned. No further affirmative act on tbe part of anyone was required. Tbe provision under wbicb respondents were appointed was enacted by a body whose powers were not dependent upon a grant, but whose powers were supreme and absolute, except as expressly withheld by constitutional restrictions.
I bave carefully read and considered every case cited by relator’s ■counsel. It would serve no good purpose to discuss them and would unduly lengthen this opinion to do so. No case cited presents a situation similar to that presented in this case. Thus, Com. v. Fowler, 10 Mass. 290, presented a situation “where tbe legislature bad created a new county and in tbe act bad provided that it should not take effect until a future date mentioned.” And tbe question presented was whether tbe governor bad authority to malee an appointment prior to tbe time that tbe legislature had said that tbe statute should become operative, and by implication authorized tbe appointment to be made. Tbe same situation existed in the case of Opinion of Justices, 3 Gray, 606, and in State ex rel. Wolcott v. Kuhns, 4 Boyce (Del.) 416, 89 Atl. 1. Tbe same or an analogous state of facts was involved in practically every ease cited. Regardless of tbe soundness of these decisions, they are readily distinguishable from the situation presented in tbe case at bar.
Relator concedes that appointments could bave been properly made •at tbe time they were made provided tbe legislature bad adopted a different mode of appointment; for instance, made the appointments it*418self in the body of the act; or that the appointments could have been legally made in the manner designated in the act, providing the appointment had been made by the governor, and confirmed by the senate at a later date; that is, after July 1st, 1915.
As already stated, relator’s entire argument in this case is predicated on the assumption that the State Board of Regents Act did not become operative until July 1st, 1915, and that the offices of the members of the State Board of Regents would not come into existence until that day.
If this is true the offices of members of the State Board of Regents would become vacant or unoccupied on and after July 1st, 1915, and would so remain until incumbents were selected to occupy them. The governor could have called a special session of the legislature in July, 1915, and submitted the nominations of the respondents to the senate for confirmation, and the nominations so made and confirmed would have been entirely valid. Consequently, the appointments made in March, 1915, were made by the person and confirmed by the body which would be entitled to make such nominations and confirm such appointments in July, 1915, and the basic reasons upon which prospective appointments are justified clearly exist. Nor it has been said that the prime reason for permitting prospective appointments to fill an anticipated vacancy in a public office to be made by a person or body which as-then constituted is empowered to fill the vacancy when it arises is based on “the supposition that there will be no change of person, and, consequently, of will, on the part of the appointing power between the date of the exercise of that power by anticipation and that of the necessity for the exercise of such power by the vacancy of the office.” Mechem, Pub. Off. § 133. In this case the respondents were appointed in March, 1915, by the person, and their appointments confirmed by the body, which as then constituted would have had the power to fill any vacancy which might have existed in such offices on July, 1915.
If it is true, as argued by the attorney general, that the referendum-power reserved in the people by the Constitution shears the legislature of all power to require performance of any act, regardless of its temporary or prospective nature, until a legislative enactment has received the passive approval of the people by the failure to file referendum petitions; then (assuming that the referendum power was intended to *419apply to, and might be invoked upon, a provision relative to appointment of statutory officers as a separate item), it must follow as a corollary to the proposition stated and assumed that such approval when given operates as an approval of all the provisions of the act. Nor it must be remembered that the referendum may be invoked as to any “item or part” of any act. Consequently if the people had been dissatisfied with the provision relative to the appointment of the members of the State Board of Regents (assuming this provision to be subject to referendum as a separate item), they could have referred this provision and left the remainder of-the act in force. By their failure to express disapproval of this provision (if relator’s argument is sound), the people must be deemed to have approved this as well as the remaining .provisions of the law, and the intent of the legislature as expressed therein also became the intent of the people as expressed by their approval.
It would seem that the most elementary principles of justice and common sense would require the application of the principle of relation, and that the approval when made, and the law when it became effective, should be deemed to relate back to the time when the appointments under the terms of the act were made.
The principle of relation is somewhat analogous to that which permits a lawmaking body to enact retrospective laws. As already stated there was no constitutional restriction upon legislative power to pass retrospective legislation with respect to the appointment of members of the State Board of Regents.
It is a rule of construction that statutes are to be construed as operating prospectively, unless the purpose and intention of the legislature to give them a retrospective effect is declared or implied from the lan-. guage used.
This rule of construction, however, is merely based upon the presumption that the legislature intended to prescribe a rule for future; operation only. The reason for the rule is that ordinarily it would be-unjust to give a statute a retroactive construction. 36 Cye. 1207, note.
The reason for the rule is at once apparent in construction of a general law affecting individuals and transactions generally. But the reason for the rule is not apparent in a situation involving purely public business. To whom could injury result from retrospective legisla*420tion with respect to the appointment of the first members of the Board of Begents ? While it is true that the act under consideration is not couched in retrospective language, yet it is equally true that the legislature in plain and unmistakable language therein directed that certain acts be performed at certain specified times and in a certain manner. Ordinarily, the question of whether a statute is intended to be prospective or retrospective is important only in determining what acts the legislature intended to be within the operation of the statute. As already stated, the paramount rule of statutory construction is to ascertain and give effect to the legislative intent. Bearing this rule in mind, it seems to me that the principles of common sense and justice require that, as a law passed to take effect on a future day is to be construed as if passed on that day and ordered to take immediate effect, so should such law, if it contains directions that certain things be done prior to such time be construed as retrospective as to such acts, provided such acts are of a class where retrospective legislation may be enacted.
The principle of relation has been applied in a large variety of causes to carry into effect the legislative will and give effect to proceedings incomplete or abortive at the time the acts thereunder were performed.
It was applied by the supreme court of Maryland in Dyer v. Bayne, 51 Md. 87, in sustaining an appointment made by the governor, but not confirmed by the senate, within the period prescribed by the Constitution. The court said: “The efficient and only discretionary act of the governor in making the appointment was in making the nomination; and the senate having no other power over the nomination than to concur or nonconcur in it, the act of the governor became complete and effective with the concurrence of the senate, and it related lack to the time of the nomination. The act of the senate and the subsequent ministerial act of the governor in issuing the commission loth related to the principal act of the governor in making the nomination, the commission being evidence only of the appointment. And the appointment being thus allowed to speak as from the time of the principal act done in making it, all difficulty upon the terms of the Constitution is at once removed. There can le no good reason why the principle of relation should not le applied in a case like the present, as it is constantly applied in many others, for the advancement of justice, and to give full *421and complete effect to legal proceedings. We think it should be so applied.” The highest court in the land has held that “a subsequent recognization and adoption, by a legislative act, of an act done without previous authority, is a ratification of, and relates back to, the act done.”" United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547. See also Re Van Vliet, 10 L.R.A. 451, 43 Fed. 761.
It has even been held that appointment of inferior governmental agents, made without authority of law, may be legalized by such legislative recognization and adoption. Wells v. Nickles, 104 U. S. 444, 26 L. ed. 825; Smith v. New York, 67 Barb. 223. See also State v. Evans, 161 Mo. 95, 84 Am. St. Rep. 669, 61 S. W. 594. This is in harmony with the views expressed by the supreme court of Ohio, in Miami County v. Dayton, 92 Ohio St. 215, 110 N. E. 726.
It seems clear to me that the provision contained in § 2 of the State Board of Regents Act, relative to the appointment of the first members of such board, does not contravene any limitations imposed upon the legislature by § 67, or the initiative and referendum amendment to § 25, of the Constitution.
In my opinion the respondents are holding their respective offices .under valid appointments conferred upon them by the chosen representatives of the people in strict accord with the terms of the act under which the officers were created, and in a manner not forbidden by the Constitution. The writ should be denied.