(dissenting). The 14th legislative assembly during its session in 1915 passed an act known as the State Board of Regents Act, the same being chapter 237 of the Session Laws of 1915. The act was passed by the legislature on the 2d day of March, 1915, and was approved by the governor on March 4th, 1915. Under § 2 of the act the governor was empowered, and it was made his duty, on or before the 2d day of March, a. r>., 1915, to nominate, and with the consent of the majority of the members of the senate in executive session to appoint, the members of the State Board of Regents for terms of two, four, and six years, reckoned from the first day of July, 1915.
The record of appointments kept by the governor in compliance with law shows that on March 2d the governor appointed as members of said board, Lewis E. Crawford, Erank White, J. D. Taylor, Emil *422Scow, and J". A. Power, respondents herein. These appointments were messaged to the senate, then in session, on March 2d, 1915, were confirmed by the senate on March 5th, and on March 9th formal commissions or certificates of appointment were issued by the governor to the above-named respondents. Under these certificates the appointees were commissioned from March 9th, 1915, to the end of their respective terms.
During the session of the 15th legislative assembly in 1917, the governor nominated and messaged to the senate the names of the following as members of said board: W. G. Brown, Robert Muir, C. E. Vermilya, Roscoe Beighle, and George A. Totten, which nominations were rejected by the senate. After the adjournment of the 15th legislative assembly; to wit, on March 19th, 1917, the governor, having declared vacancies to exist in the above-mentioned offices, issued commissions or certificates of appointment to the last-named men, appointing them to fill such vacancies. This action having been brought on behalf of the state by the attorney general as relator, it is unnecessary to determine whether these appointments confer title. The sole question is as to the title of the respondents.
It is contended by the petitioner that the first appointments made under chapter 237 of the Session Laws of 1915 are insufficient to invest the appointees with title to the offices for the respective terms of their appointments, for the reason that, at the time the appointments were made, the act purporting to authorize the same had not become law. This contention is based upon a double premise.
First, it appearing from the governor’s appointment register that the appointments were made on March 2d, and, it being an incontrovertible fact that the act did not become a law prior to March 4th, after which time no appointments were made, the records show conclusively that the appointments were made before the law went into effect. (For the purpose of this contention it might be assumed that the act became operative upon its approval by the governor.)
Second, that the emergency clause (§ 12) is insufficient, under the existing Constitution as amended, to put the law into operation before July 1st, 1915.
In fairness to the attorney general it should be stated at the outset that the argument upon the first premise was largely planned and made *423in ignorance of the fact, of which there is no official record, that the •commissions were issued to the respondents on March 9th, 1915, and that he became aware of this fact for the first time upon the argument •of the case before this court. Since the argument upon the second premise is, in my opinion, quite conclusive against the title of the respondents, it is unnecessary to consider at length the merits of the argument upon the first proposition.
A careful reading of chapter 237 discloses that it was the evident intention of the legislature to make the act become effective and operative for all purposes, save for the purpose of the assumption of actual control over the institutions thereby brought under the jurisdiction of the Board of Regents, immediately upon its passage and approval. It is provided, for instance, that the governor shall make the appointments on the second day of March. It is further provided that the members of the board thus so appointed shall meet at the Capital on the first Tuesday in April, 1915, for the purpose of organizing and electing a secretary. TheJboard is further authorized to procure the making of an educational survey “as soon as practical after having organized.” They are to be paid $7 per day and their necessary traveling expenses while attending the meetings or while engaged in the performance of special duties, and to defray the expenses the sum $18,000 annually is appropriated. The emergency clause appended to the act is as follows: “Whereas, an emergency exists, in this, that this act is deemed of immediate importance in order that the board hereby created may be in a position to take full control of such institutions on July 1st, a. d. 1915, therefore this act shall be in full force and effect on and after its passage and approval.” From this brief sketch of the provisions of the act in question, it clearly appears that the legislature did not intend or attempt to authorize or direct the doing of any acts in pursuance of the law prior to the time when, by its own terms, it should become operative. It clearly appears that it was the intention of the legislature to place the law into full effect and operation immediately, and that it was •contemplated that it should in all respects be, a law before anything was required to be done under it. This applies to the making of appointments as well as to the direction that meetings be held for purposes of organization and instituting the work directed to be done; for the history of the legislation discloses that, as the act was originally drawn, *424the governor was directed to make the first appointments on February 21st, rather than on March 2d, the amendment substituting the latter-date being made, no doubt, so as to place the time for making the appointments subsequent to the date when it was contemplated the act would probably pass. Without stopping at this point to inquire whether-appointments made by the governor must be sanctioned by an existing-law or whether they may find a sufficient legal foundation in acts to-become operative at a later date, I shall pass to a consideration of the-emergency clause, with a view to determining the date at which the law in question became operative.
The emergency clause was doubtless drafted with a view of satisfying § 67 of the Constitution. This section is as follows: “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 the members present in each house, otherwise direct.” At the general election of 1914 certain amendments to the-Constitution were enacted, among them being amendments authorizing the procedure known as initiative and referendum. The amendment with which we are concerned here was adopted as an amendment to- § 25 of art. 2 of the original Constitution, which section contained but one sentence as follows: “The legislative power shall be vested in a. senate and ho-use of representatives.” By the initiative and referendum amendment this section is so modified as to reserve to the people “power to propose laws and to enact or reject the same at the polls, independent of the legislative assembly.” The portion of the amendment which is-material to our present inquiry reads as follows: “The second power-is the referendum, or the power to order any act, item, or part of any act to he referred to the people for their approval or rejection at the-polls, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), as to any measure or any parts, items or sections of any measures passed by the legislative-assembly either by a petition signed by 10 per cent of the legal voters-of tho state from a majority of the counties, or by the legislative assembly, if a majority of the members elect vote therefor. When it is necessary for the immediate preservation of the public peace, health or safety that a law shall become effective without delay, such necessity and *425the facts creating the same shall be stated in one section of the billr and if upon aye and no vote m each house two thirds of all the mem<~ bers elected to each house shall vote on a separate roll call in favor of the said law going into instant operation for the immediate preservation of the public peace, health or safety, such law' shall become operative upon, approval by the governor.
“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 operative. Referendum petitions against measures passed by the legislative assembly shall be filed with the secretary of 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; is demanded. The veto power of the governor shall not extend to measures referred to the people. All elections on measures referred to the people of the state shall be had at biennial regular elections, except as provision may be made by law for a special election or elections. Any measure referred to the people shall talce 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."
It is not seriously contended that the emergency clause upon the act in question is sufficient to satisfy the requirements of the amended § 25,, but it is earnestly argued that the amendment to § 25 in no way affects-the original § 67 of the Constitution, and that the emergency clause,, being sufficient under that section to place the law into immediate operation, is still sufficient notwithstanding the referendum amendment. In my opinion, this contention is wholly untenable, and certainly it is-not borne out by those courts which have had occasion to consider questions similar to, if not identical with, this.
The respondents’ argument upon this point resolves to this: That since the adoption of the referendum amendment there are, with respect to time of taking effect, three classes of legislation; namely:
1st. Ordinary legislation, that will take effect on July 1st, after the adjournment of the legislative session..
2d. Emergency legislation, which may take effect under the provision of § 67 of the Constitution either immediately or remotely at such-time as the legislature may determine.
3d. The class which is necessary for the immediate preservation of *426-the public peace, health, or safety, concerning which it is a requisite •of its immediate operation that the necessity and the facts creating the same shall be stated in one section of the bill, that there shall be an aye and no vote in each house on a separate roll call upon the question of the emergency alone, and that the same shall pass by a two-thirds vote of all the members elected. This class might well be designated as real emergency legislation.
The first-mentioned class is clearly subject to the referendum, the last class just as clearly not subject theretowhereas the applicability of the referendum amendment to the second class is, at least, gravely •doubtful.
I am unable to find support either in reason or authority for such .a classification of legislation under our present Constitution. The words of the amendment considered in the light of contemporaneous history leave no doubt in my mind as to the meaning to be derived -therefrom. Under the Constitution as it stood prior to the referendum amendment, all legislative power was vested in the legislature. The scheme of government under that Constitution was representative only, and the legislative powers of the sovereign people were delegated exclusively to the representatives. By virtue of the amendment to § 25, a part of the legislative powers of the sovereign people was reserved for direct exercise by the people themselves, and a more or less elaborate scheme was provided for giving effect to this power “independent1 of ■the legislative assembly as the people should choose to exercise it. The ■referendum power is defined in the amendment itself to be “the power to ■order any act, item, or part of any act to be referred to the people for their approval or rejection,” and it is provided that the filing of a referendum petition “shall not delay the remainder of that act from becoming operative ” 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.” From the foregoing language it would seem to be clear that the referendum powers ■ of the people were not to be employed as to legislation which had already taken effect, but rather that there should be an opportunity for the exercise of the referendum before any act of the legislature subject to such power should become a law at all. Nowhere within the four comers of the amendment is there *427any expression that tends, in my opinion, to evince an intention on the part of its framers to malee the referendum powers extend to legislation which has once become operative. To give the amendment a construction which would change the nature of the power reserved, from that of a referendum upon legislation in process of making to that of a repeal of legislation recently put into force, is to change the very nature of the power itself. The referendum is. not designed as a mere potential condition subsequent or as a repealing power; it is rather a right to say that certain acts shall or shall not become law at all. Such a •construction as would make immediately operative an act passed by the legislature with an emergency clause attached satisfying § 67 of the original Constitution, subject, however, to being suspended by the later filing of a referendum petition against it, would, indeed, lead to some very startling and shocking results, and would introduce into the legislative system the condition frowned upon by our highest judicial authority. The United States Supreme Court has employed language which aptly characterizes the condition that would result from such a practice. In speaking of a somewhat similar situation it said: “That which purports to be a law of the state is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances, of parties. It would be an intolerable state of things if a document purporting to be an act of the legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day and not a law to-morrow; a law in one place and not a law in another in the same state.” South Ottawa v. Perkins, 94 U. S. 260, 24 L. ed. 154.
In this connection it should further be noted that to hold legislation that is passed with the emergency clause provided for in § 67 immediately effective, and yet subject to later suspension by referendum, would make it possible to defeat entirely the effect of a referendum upon all legislation for the accomplishment of some object which could be fully realized within a short time. There need be no emergency in fact, and the public peace, health, or safety need not be involved, — all that would be required would be a two-thirds vote of the members present, which may be no more than the bare majority required for passage. Under this construction the reserved referendum powers would, as to such legislation, become a mere empty shell and their exercise be but an idle *428ceremony. The researches I have been able to make have not been, rewarded, by the finding of the slightest authority for the position that' legislation passed with the old-style emergency clause goes into effect, immediately, subject to the later exercise of the referendum. On the contrary, as will be noted later, every expression is against the proposition. (See authorities hereinafter cited.)
In construing the amendment in question we must not lose sight of the fundamental principle that should control in every effort to derive from the Constitution as amended its true meaning. We should be-ever mindful that it is of supreme importance to ascertain and to apply the meaning which reasonably inheres in the original Constitution, with due allowance for that which is conveyed by more recent amendments. In giving effect to an amendment construed in the light of the previously existing provisions of the Constitution it must be remembered that both are expressions of the fundamental law. Such a construction must not be given to the Constitution as a whole as will tend to set at naught the basic policy underlying an amendment. The proper rule of construction to be applied in such a case was well expressed by the court off appeals of New York as follows: “The question remains whether the framers of the amendment intended that a general provision contained in the original instrument should be applicable to the subject of such amendment. It would be quite absurd to suppose that, while framing-an elaborate scheme of public policy to be incorporated in the fundamental law of the state, they intended to subject it to the operation of general provisions of the same instrument which might, when applied, thereto, annul the express grants of power therein contained, and authorize each successive legislature to overthrow and destroy the whole-object and effect of the amendment adopted. To hold that this was the intention of the authors of the amendment would require us not only to stultify them, but would stamp their work as an idle ceremony of no-practical importance.” People ex rel. Killeen v. Angle, 109 N. Y. 564 — 574, 17 N. E. 413. See also People ex rel. Williams Engineering & Contracting Co. v. Metz, 193 N. Y. 148-156, 24 L.R.A.(N.S.) 201, 85 N. E. 1071; People ex rel. Carlson v. Denver, 60 Colo. 370, 153 Pac. 690; People ex rel. Atty. Gen. v. Cassiday, 50 Colo. 503, 117 Pac. 362 ; Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 659; Grant v. Hardage, 106 Ark. 506, 153 S. W. 826. A fair construction of the Constitution *429•and the amendment, with a dne regard for the foregoing principle, requires that any inconsistency between the emergency clauses of § 67 of the Constitution and of the referendum amendment to § 25 shall be resolved in favor of the later expression found in the amendment. To construe it otherwise would be to lay foundations which might ultimately lead to the complete destruction of the vital principle of the amendment and to the complete denial of the reserved power therein contained. A construction in harmony with this principle has been adopted by the district court of appeals of the 3d district of California. The court said: “This amendment to the Constitution provides a scheme for the exercise of what is known as the initiative and referendum, and, of course, if possible, the language should be construed so as to make effective this reservation of power on the part of the people. It was clearly their purpose, except where the exigency of the public service demanded otherwise, that no legislative enactment should become operative until an opportunity were afforded the people to express their judgment as to the merits of the measure. The time within which a petition may be presented in contemplation of this action by the people is limited to ninety days after the adjournment of the legislature, and hence the manifest propriety of suspending for said period the operation of any measure that should be thus reviewed.
“The exceptions provided are ample enough to prevent any menace to the public welfare by reason of such delay incidental to a submission to popular vote, and they should not be given an interpretation so elastic as virtually to circumvent and nullify the will of the people so solemnly •expressed in said constitutional provision.” McClure v. Nye, 22 Cal. App. 248, 133 Pac. 1147.
But without regard to the general policy of the amendment, its language alone is a sufficient guide to its meaning touching this question. A number of expressions might be referred to to substantiate this statement, but one will suffice. Coupled with the expression which reserves “the right of referendum is an express exception which precludes its application to “laws necessary for the immediate preservation of the public peace, health, or safety.” The next sentence deals exclusively with “the legislative procedure that shall be required to put the excepted class of legislation into immediate operation, and it is provided that upon ■satisfying these requirements “such law shall become operative upon *430approval by tbe governor.” Had tbe framers of tbe amendment considered that section 67 -would continue wholly operative to accomplish this purpose, the concluding clause of this sentence would not have been expressed as it was, if, indeed, the sentence would have been regarded as necessary at all.
Upon this question, however, there is an abundance of authority. A number of the courts have had occasion to consider it, and it has been uniformly held that, since the adoption of the referendum amendment containing the specific exception as to legislation that should not be subject thereto, and as to the character and form of the emergency required to remove an act from the operation of the referendum, an emergency clause complying with the original constitutional provisions similar to^ our § 67 could not operate to put a law into immediate effect. It is true that the supreme court of South Dakota in the case of State ex rel. Lavin v. Bacon, 14 S. D. 394, 85 N. W. 605, in an ill-considered opinion, held that an act could become immediately effective under the original constitutional provision respecting emergencies, notwithstanding the referendum amendment. But in a later case, State ex rel. Richards v. Whisman, 36 S. D. 260, L.R.A.1917B, 1, 154 N. W. 707, this holding was repudiated. The learned court in an unanimous opinion by presiding Justice McCoy held that “§§ 1 and 22 of article 3 should be construed and read together as if forming different parts of but one section,” and that “the emergency measures mentioned in § 22 must and can only refer to the same emergency measures mentioned in the referendum clause exception contained in § 1.” “It therefore follows” said the court, “that the legislature, by necessary implication, is only authorized to declare emergencies in that class of measures specified in the said exception to the referendum clause. As to all emergency measures and acts within the purview of this exception, the legislature may declare an emergency to exist. . . . But as to any measure, law, or enactment clearly not within the class of emergency measures specified within said exception, the legislature has no power or authority to declare an emergency to exist in relation thereto, by any vote, however large the same may be; and the action of the legislature in embodying emergency clauses in measures clearly not comprehended within the said exception is wholly unwarranted and void, and should be so held by the courts. Not that the act itself would be void, but the emergency *431clause would be void, with the result that the act would not go into effect until the first day of the next July, and also with the result that, in the event of a proper referendum petition being filed as required by law, such enactment would not go into effect until approved by a majority vote of the electors of the state.” State ex rel. Richards v. Whisman, supra. This case involved the effect of an emergency clause similar to the one upon the act in question.
It clearly appears from the foregoing expression that the dicta of Justice Corson in the case of State ex rel. Lavin v. Bacon, supra, wherein he held both that the old emergency provision was still effective and that legislation containing an emergency clause satisfying this provision would not be subject to the referendum, are distinctly overruled by the more recent unanimous expression of the same court. I say "dicta" because it appears that the court had before it in the first case an emergency clause declaring that the act was necessary for the immediate preservation and support of existing public institutions, which declaration brought the emergency within the exception contained in § 1, and by this alone it was removed from the operation of the referendum and given immediate effect. S. D. Const, art. 3, § 1.
Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199, is incomplete accord with the later South Dakota case. In this case the court passed upon an act of the general assembly of Arkansas which contained an emergency clause similar to that formerly in vogue in this state under § 67 of the Constitution. The clause simply provided that the act should take effect and be in force from and after its passage. The act was approved by the governor on June 29th, 1911. The court held that, under the initiative and referendum amendment “only ‘laws necessary for the immediate preservation of the public peace, health, and safety’ are excepted from its provisions,” and that “all other laws are subject to its operation; and ninety days being given by its terms from the final adjournment of the session of the legislature which passed them, in which to demand or order the referendum thereon, they cannot talce effect or go into operation until the expiration of ninety days after such adjournment" In this case, as in the instant case, there were acts to be done by certain state officers within the ninety days period, and it was held that this fact would not render the act operative for any purpose before the expiration of the period within which the referen*432•dum might have heen exercised. See also Hanson v. Hodges, 109 Ark. 479, 160 S. W. 395, and Cooley, Const. Lim. 7th ed. pp. 92 and 224.
In Sears v. Multnomah County, 49 Or. 42, 88 Pac. 522, the supreme nourt of Oregon had occasion to consider a similar question, and it likewise held ineffective an emergency clause which would have been sufficient under the section of the Constitution of Oregon which corresponds with our § 67. The Oregon court refused to follow the earlier decision of the South Dakota court in State ex rel. Lavin v. Bacon, 14 S. D. 394, 85 N. W. 605, and held that, after the adoption of the referendum amendment, the only emergency clause which could operate to put a law into immediate effect would be one coming within the terms ■of the referendum exception. It was accordingly held that the act in question would not become effective until ninety days after approval by the governor, notwithstanding it bore an emergency clause which would have carried it into immediate effect under the Constitution as it originally stood. In this ease the question was squarely presented, and the court was unanimous.
In the case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11, the supreme court of Washington decided, in accordance with the cases, previously cited, from South Dakota, Arkansas, and Oregon, that since the adoption of the referendum amendment an emergency clause complying only with the original Constitution would not be effective to carry the law into immediate operation. In that case an act was passed changing the personnel of the state board of land commissioners. An emergency clause was attached, stating that the act was necessary for the.immediate preservation of the public peace and safety and for the support of the state government, wherefore it should take effect immediately. While there was a marked difference of opinion among the judges as to the propriety of going back of this legislative declaration of an emergency, the court seemed to be agreed that the law could not go into immediate operation save on the assumption that there had been a full compliance with the referendum emergency exception.
In the case of State ex rel. Kemper v. Carter, 257 Mo. 52, 165 S. W. 773, the supreme court of Missouri construed a referendum amendment which was substantially identical with that of Oregon and At. kansas (which is also substantially the • amendment adopted in this .state). In that case the referendum had been invoked, but the court, in *433determining whether or not the act referred was in effect prior to the election, approved and adopted the interpretations of the courts of Arkansas and Oregon above referred to. See also Re Menefee, 22 Okla. 365, 97 Pac. 1018; Norris v. Gross, 25 Okla. 287, 105 Pac. 1000; Kadderly v. Portland, 44 Or. 118, 74 Pac. 720, 75 Pac. 222; Atty. Gen. ex rel. Barbour v. Lindsay, 178 Mich. 524, 145 N. W. 98.
I am aware of the fact that the Constitutions of some of the states from which the foregoing cases are cited differ in some respects from the Constitution of North Dakota as amended, but in none of the cases ■summarized above has any conclusion been based upon language not found in our Constitution. It is true, nevertheless, that in Washington and California the decisions might have been rested upon the express language of the referendum amendment wherein it is provided that no law or bill subject to the referendum shall take effect until ninety days after the adjournment of the session of the legislature at which it was enacted. In South Dakota the referendum amendment contains a clause, not found in the North Dakota amendment, which clause is italicized in the following quotation. There the referendum is declared to be the right to require that the ‘laws . . . shall be submitted to a vote of the electors of the state before going into effect (except such laws as may be necessary for the immediate preservation of the public peace, etc.).” This amendment is no more explicit than the North Dakota amendment as to what the effect shall be where the right of referendum is not invoked, nor was the italicized portion in any way relied upon by the South Dakota court in its interpretation of the language of the .amendment to the effect hereinbefore indicated.
In Arkansas the referendum amendment differs in no substantial particular from that of North Dakota, but in the Arkansas Constitution there is no section which corresponds with § 67 of the North Dakota •Constitution. In the absence of such a controlling provision in the Constitution the time when laws shall take effect is under the complete control of the legislature. This was the situation under the Constitution of Arkansas prior to the amendment; yet, the court held that by the adoption of an amendment like ours the legislature was deprived of the power, previously vested in it, to make its acts effective at such time as it should choose. In both Oregon and Missouri^ however, the situation is identical with that of North Dakota. The original Constitu*434tions in these states contained sections which controlled the time when, laws should become operative, and authorized the legislature to make-them take effect at a different time by the adoption of an emergency clause, and those sections remain in the original Constitutions, modified, only by the referendum amendment, as in North Dakota.
It is difficult to see wherein the fact that the Oregon section, corresponding with § 67 of the North Dakota Constitution does not require a two-thirds vote is a consideration weighing in favor of the conclusion reached in the opinion of Chief Justice Bruce. In both North Dakota and Oregon the requirement to satisfy the emergency clause of the-referendum amendment is more exacting and rigid than that of the original emergency limitation. As pointed out elsewhere in this opinion, a bare majority of the members elected may be sufficient to attach the emergency clause provided for by § 67.
It is equally difficult to see wherein a resort to the aid of contemporaneous construction is at all proper in the instant case. It must be-borne in mind that the legislature of 1915 was the first to meet after the-adoption of the referendum amendment, and it is a fact worthy of note in this connection that the newspapers which told of the conclusion of the session also published an opinion of the attorney general of the state holding that the only acts which could become immediately operative were those which were necessary for the immediate preservation of the public peace, health, or safety, and those only in case-an emergency clause had been attached in compliance with the referendum amendment. The headlines and subheadlines of the newspapers, make it appear that even the lawyers in the legislature were, to quote from them, “asleep at the switch,” and that the house of representatives-was “taken by surprise.” In the face of these facts, contemporaneous-construction is certainly of no weight whatever. Furthermore, it is a fact equally well-known and of even greater significance that at the session immediately following the legislature changed its practice so as to-conform to the requirements of the referendum amendment.
This branch of the discussion has extended beyond the bounds that would seem to be required to express a personal or minority view. But inasmuch as four members of this court regard the question as properly involved, — at least three members regarding it as decisive, — it was. thought proper to attempt a fairly ample expression of the views of a *435minority of the court in the hope that they may yet prevail when the full court is called upon in some future case to determine the question.
Having determined that the emergency clause appended to the act in question is wholly insufficient to put the act into immediate operation upon its approval, and that the act consequently could not, and did not, take effect as a law of the state during the period allowed for filing a referendum petition, it remains to consider whether or not the action taken by the governor in appointing the respondents to membership on the Board of Regents for the respective terms indicated in the certificates of appointment conferred upon them any title to the offices so occupied. Respondents contend that it is legally competent for the chief executive to malee an appointment to a new office to take effect on the establishment of such office, which appointment might legally be made before the law establishing such office should go into effect. The validity of this contention depends upon the state of the law controlling the exercise of the appointing power.
Early in its history, this court had occasion to consider and to define the powers of the governor with reference to appointing minor officers, and it was held that the governor possessed no inherent powers of appointment as a prerogative of his office. Said the court on that occasion, speaking through Mr. Justice Wallin: “We do not think that all power to appoint to office resides with the governor of a state as an implied executive function in cases where the Constitution is silent upon the question. This view is in harmony with the spirit of our institutions and has the support of a decided preponderance of authority.”
“Under the common law of England the sovereign power belonged to the King, and the power to appoint to office was unquestionably a sovereign prerogative. In this country, and under our form of government, the sovereign has been transferred and is in the hands of the people.” State ex rel. Standish v. Boucher, 3 N. D. 389-395, 21 L.R.A. 539, 56 N. W. 142.
Again, after a full discussion of the authorities, Justice Bartholomew stated the following as his conclusion: “A careful study of all authorities to which we have been cited and all that we are able to find has made it entirely clear to each member of this court that the power of appointment to office does not necessarily and in all cases inhere in the executive department, and that when, as in this state, the express pro*436vision of the Constitution'vest in the governor a limited power of appointment, such grant is exclusive, and no other or greater appointing power can be exercised ” State ex rel. Standish v. Boucher, supra, 409.
Since this original pronouncement it has been the unquestioned law of this jurisdiction that the exercise of a power of appointment by the governor must find sanction in some positive law, and that it cannot rest alone upon official prerogative or upon implications of power to be derived from the Constitution.
Such being the law as heretofore determined by this court, we must look to the Constitution and the statutes in order to determine what appointive power has been given to the chief executive. Section 78 of the Constitution is as follows: “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.” Section 111, subd. 3, Compiled Laws of 1913, in speaking of the powers of the governor “in addition to those prescribed by the Constitution,” says: “He is to make appointments and fill vacancies as required by law.” Section 683 of the Compiled Laws of 1913 is a general statute declaring when offices shall be deemed vacant, and § 696 of the Compiled Laws of 1913 provides that all vacancies in state offices shall be filed, with certain exceptions, by the governor. In these sections of the Constitution and the statutes, together with the' authoritative judicial interpretation of the powers of the governor, we have a complete body of law controlling the exercise of the appointive power by the governor, and this law must control until authoritatively, effectually, and legally changed.
It is no more competent for a legislature to effect a change in this body of law before the time arrives when it is constitutionally competent for it to have its will given.the force of legal expression, than it would be for a majority of the legislature to attempt at its next session to reduce the number of votes required in the senate for the confirmation of a member of the board of control from two thirds, as now required, to a majority. Manifestly any attempt to so change the law where no emergency exists or is declared would be wholly abortive; yet it would be exactly within the logic of the opinion of Mr. Justice Christianson, wherein he justifies the legality of the appointments of the respondents on the theory of legislative intention. In my opinion, the validity of the ap*437pointments of the respondents must depend upon the existence or nonexistence of a law in force at the time the appointments were made, which would justify and warrant the exercise of the appointing power. As we have before seen, there was no law in effect on March 5th, when the appointments were confirmed by the senate, or on March 9th, when the commissions were issued by the governor. This being true, the appointments lacked legal sanction when made, and were consequently incapable of conveying title to office. State ex rel. Worrell v. Peelle, 124 Ind. 515, 8 L.R.A. 228, 24 N. E. 440; State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S. W. 829, Ann. Cas. 1915A, 588.
One of the leading cases cited by respondents in support of the argument that it is competent for the executive and the senate to make prospective appointments under a prospective law is the case of People ex rel. Graham v. Inglis, 161 Ill. 256, 43 N. E. 1103, wherein it was held that appointments made by the governor before the time when the law passed by the legislature became effective conveyed good title to the office. The court, however, rested the case principally upon the construction of a provision of the Hlinois Constitution which provided that every bill passed by “the general assembly shall, before it becomes a law, be presented to the governor. If he approves, he shall sign it, and thereupon it shall become a law.” The court adopted the view that the law existed from the date of approval, and that it was only its operation that was postponed. It must be noted, however, that the court rested the exercise of the appointing power, which was sustained in that case, upon a separate section of the Constitution, which provided that the governor should nominate, and, by and with the consent of the senate, appoint, all officers whose terms are provided for by the Constitution or which may be appointed by law. The court did not hold that the act, which had not as yet gone into operation, was, standing alone, a sufficient warrant for the exercise of the appointive power of the governor. This distinction was observed and commented Upon soon afterward by the same court in the case of People ex rel. Herdman v. Rose, 166 Ill. 422, 47 N. E. 64. In this later case there was involved the question of the validity of an election directed to be held in June under am act which, it was contended, did not become effective until July first.. In drawing the distinction mentioned above, the learned court used language that expresses the principle which differentiates the two sitúa*438tions more adequately than any we might employ. “Upon this question,” said the court, “the attorney general, as counsel for the defendant, contends that although the law may not be in force, such election may be held under its provisions, and he cites the case of People ex rel. Graham v. Inglis, supra, to sustain his claim. That case does not furnish a parallel to this. The governor who exercised the power of appointment of trustees of the normal school was an officer of the state, vested by the Constitution with- the power of appointment, which he exercised. His office was created by the Constitution, and his power of appointment did not depend upon the law' or upon its being in force at the time. It was there said that the trustees whose power arose out of the act not yet in force could do nothing to carry out its provisions until the law should take effect. In this case the law creates new districts and a new electorate, upon which the power of choosing-judges in the respective circuits is conferred. The circuits in which the elections are to occur have no existence, except as they are created by the act. The only purpose of the law is to make new circuits, and to make it effective for that purpose is to make it effective for the entire object of the law. Unless the act is in force, the new circuits in which conventions can be held and nominations made, and elections called and held, can have no existence.”
In the case of State ex rel. Wolcott v. Kuhns, 4 Boyce (Del.) 416, 89 Atl. 1, the superior court of Delaware denied the authority of the Inglis Case for the proposition that an appointment could be made under a prospective law, and that court likewise pointed out that the power of appointment which was upheld in the Inglis Case rested in reality upon a provision of the Constitution which made the governor the appointing power for all offices created by statute. Then the court proceeded to hold void an appointment made by the governor six days prior to the time when the act authorizing the appointments went into effect. ' In distinguishing between the case at bar and the Ingliscase, the court said: “That case is no aid to us in this case for the appointment here was made under authority of the same statute that created the office, and the power of appointment is coexistent with the creation of the office. The question then is, When was the office created and when was the power of appointment conferred upon the *439•governor ? Upon the date of the approval of the act, or upon the date that by its own terms it took effect ?”
In the solution of this question, which is the same as in the case before us, the Delaware court relied upon no less an authority than Mr. Justice Shaw of the supreme court of Massachusetts, and adopted language from an opinion contained in the supplement to Opinion of Justices, 3 Gray, 601-607, which I should be perfectly content to adopt and follow in the instant case. Said Chief Justice Shaw: “Every provision and clause of the act, whether it be for making any new law, or for repealing, qualifying, or amending any old one, are absolutely suspended until the arrival of the time limited for its going into ■operation, to the same effect and purpose as if it had been passed on that day. If such an act confers powers on the governor and council to appoint officers, or on the legislature or people to elect them, such powers do not become vested in such magistrates or people until the ■day limited for the act to go into operation.” See also Com. v. Fowler, 10 Mass. 290; State ex rel. Cook v. Meares, 116 N. C. 582, 21 S. E. 973, State ex rel. Worrell v. Peelle, 124 Ind. 515, 8 L.R.A. 228, 24 N. E. 440; Santa Cruz Water Co. v. Kron, 74 Cal. 222, 15 Pac. 772; Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674; Rice v. Ruddiman, 10 Mich. 125.
Eespondents rely upon the case of State ex rel. Clarke v. Irwin, 5 Nev. 111, to substantiate their contention that an appointment to'a new office, to take effect at a future date when the act creating the office should go into effect, is a good appointment. It appears in that case that the respondent Irwin was designated in the act itself as sheriff. It also appears that between the date of the passage and the ■date fixed in the act for it to take effect, Irwin was commissioned by the governor. The case nowhere holds that the commission by the governor alone was sufficient to invest Irwin with title to the office. ■On the contrary, the clear implication of the decision is that such ■commission was not sufficient to vest the title in him; for it was held, in accordance with the principle later established in this state in the Boucher Case, that the power of the governor to appoint to office was, under the constitution of Nevada, as here, but a limited appointive power, — that of filling vacancies where no other method is provided by law. That such is the holding of the Nevada court clearly appears *440from the following quotation at page 128: “Two things must then concur; there must be a vacancy, and no provision made by the Constitution, or no existent law for filling the same, before the governor can exercise the appointing power. Now, if, upon the creation of this new office, ... no vacancy occurred, the office remained to be filled by some power. The governor had not that power, and there was no prohibition upon the legislature, unless it exist in the constitutional provisions heretofore considered, ... If there was a vacancy, then the very law which created the county and occasioned the vacancy filled the same, and there was no such condition of affairs as § 8, art. 5 [the section authorizing the governor to make appointments to fill vacancies] of the Constitution suggests; but upon this latter point it is unnecessary to express a decided opinion, for Irwin had not only the appointment of the legislature, but the commission of the governor.” See also State ex rel. Rosenstock v. Swift, 11 Nev. 128-137, 138.
It will be noted that the section in Throop on Public Officers, relied upon by respondents (§ 91), contains a very proper qualification which destroys its effect as authority for the proposition contended for in this case. The statement is: “As a general rule, a prospective appointment made by a body which, as then constituted, has power to fill a vacancy when it arises, is valid. So an appointment, to take effect at a future day, when.the statute creating the office shall take effect, is good.” This latter statement no doubt presupposes the existence of the power to appoint at the time of its exercise. The only authority cited for it is the Nevada case of State ex rel. Clarke v. Irwin, supra, in which the court expressly refused to hold that the appointment by the governor alone was sufficient to invest the respondents with title, and where, as shown above, the court adheres to the theory of the limited appointive power of the executive, which must find its sanction in some "existent” law. Professor Mechem, in his work on Public Officers, states the rule substantially as stated by Throop, making proper allowance for the application of the limited power of appointment in the executive. Says Mechem, § 133: “A prospective appointment to fill an anticipated vacancy in a public office, made by the person or body which, as then constituted [the italics are Mechem’s] is empowered to fill a vacancy when it arises, is, in the absence of express law forbidding it, a legal appointment, and vests title to the office in the appointee.” Neither *441of these authorities goes any farther than to justify the exercise of the vacancy-filling power of the governor when it is certain that a vacancy will occur at a future date. This is altogether different from the power to fill an office for a definite term extending beyond the period to which vacancy appointments are legally limited. Under the act in question a vacancy appointment is limited to expire at the next session of the legislature following the appointment. Sess. Laws 1915,. chap. 237, § 3.
Upon the supposition that a newly created office, which has never had an incumbent and which no one has been legally authorized to assume, can be deemed vacant so as to call into being the vacancy-filling power of the governor (as to which the authorities are in sharp conflict, Mechem, Pub. Off. § 132), the appointments made, designating, the respondents as members of the Board of Kegents, could have no effect other than that of ordinary vacancy appointments by the governor. Certainly a new office is not regarded as vacant for the whole term under the law of this state. Comp. Laws 1913, § 683. A vacancy appointment expires at the time limited by law, even though no successor,has been appointed. See Mechem, Pub. Off. § 139.
If valid appointments can be made before the law conferring power to make them can become effective, what else may be done? Might a board legally enter into a contract before the law authorizing them to do so could become effective? Would a contract so made be binding, so that its obligation could not be impaired ? Could a mere majority of the legislature authorize money to be drawn from the state treasury in any year of a legislative session before the law appropriating it goes into effect? Certainly a majority could put any such provision into a bill and could pass it, although it might lack the necessary vote to make the bill effective as an emergency matter. The subject-matter itself might even be wholly inappropriate for an emergency. The opinions of Justices Bruce and Christianson go a long way towards denying the effect of the plain language of our Constitution. Of what force is the constitutional provision postponing the effect of legislation if, where no emergency exists, officers may be inducted into office under-commissions to hold six years, which commissions are issued before the law goes into effect, and by an officer whose legal power to appoint is limited by express law to the filling of vacancies ? If such appoint*442ments convey title to office, by what process of reasoning will we withhold the exercise of the governmental franchise in other directions and to what extent will we deny effect to laws adopted in the face of the •Constitution withholding the operation of laws for a given period ?
There is no question in this case of validating any act previously done without authority of law, and it cannot be contended that the law relates back, for every expression in the act is prospective. The legislature did not purport to validate, as of July 1st, acts of the governor prior to that time which were not legally done, and no amount of contrary assertion can change the plain meaning of the act in this particular. See State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S. W. 829. It will be time enough to consider the effect of a validating act or curative •act when we have such a law before us. Neither is there any question here, as I see it, of relation back by operation of law. When elections .are held they must be' authorized by existing laws or they are void. Santa Cruz Water Co. v. Kron, 74 Cal. 222, 15 Pac. 772; People v. Johnston, 6 Cal. 673; State ex rel. Heim v. Williams, 114 Wis. 402, 90 N. W. 452, — and I can see no distinction in this regard between •an election and an appointment.
The appointments of respondents can in no proper sense be regarded as legislative appointments. They were not made by the legislature, but by the governor. The names of the respondents are not incorporated in the bill, nor did the legislature, as such, assume any responsibility for the selection of the men appointed. What it did attempt to do was to authorize the governor to make appointments with the ■consent of the senate, and the appointments so made would, of course, be perfectly valid, if the power to make them existed at the time. I ■do not question the proposition that the appointing power is under the •control of the legislature. The following authorities fully substantiate this doctrine. People ex rel. Waterman v. Freeman, 80 Cal. 233, 13 Am. St. Rep. 122; 22 Pac. 173; note by Freeman in 13 Am. St. Rep. 125; 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. The fact that this plenary power of control exists in the legislature makes it all the more important that the power be exercised in accordance with law.
As to the question of contemporaneous construction by all the state *443•officials, suggested in the opinion of Chief Justice Bruce, if available information is correct this is an overstatement as it appears that some •of the state officials at least refrained from regarding laws as in operation during the time for filing referendum petitions. Its inaccuracy is evidenced by the opinion of the attorney general hereinbefore referred to.
I find myself in entire accord with much that is said in the opinion of Mr. Justice Christianson. In this opinion he discusses a number •of questions which, to my mind, have little or no bearing upon tbe case in band. Tbe real point of disagreement is upon tbe validity of appointments made without tbe sanction of an existing law. My views upon this question have been set forth at length in tbe foregoing opinion, and they are concurred in by my associate, Judge Grace. I am also authorized to say that, while Mr. Justice Robinson bolds that tbe act was in force when tbe appointments were made and that they were consequently valid, be too agrees that valid appointments cannot be made except under an existing law. Under bis view that point is not material.
In tbe opinion of Mr. Justice Christianson it is stated that if tbe •contentions of tbe attorney general are correct, it would be impossible for tbe legislature to provide, in tbe act creating statutory offices, for tbe appointment and confirmation of tbe incumbents of such offices at tbe same session of tbe legislature at which they were created, and that, according to bis argument, it would be necessary for tbe governor to refrain from making tbe nominations until after July 1st, and then ■call a special session to act upon tbe appointments. It may be confidently asserted that no such situation would result. As to offices, the creation and filling of which is a matter of real emergency, it may be done in exactly tbe same way it has always been done heretofore, by tbe inclusion of a proper emergency clause; and, if it is desired to extend tbe ground of legal possibility in this direction, all that need be done is to pass a general law or an amendment to existing statutes broadening tbe scope of tbe executive powers with reference to vacancy appointments. Tbe foregoing suggestion does not imply any limitation whatsoever upon tbe legislative power with respect to statutory offices, as suggested by Mr. Justice Christianson. On tbe contrary it assumes that tbe matter is within tbe absolute control of tbe *444legislature, but it does require that this control be exercised by law. Neither is there anything novel or anomalous in the suggestion made. The condition herein commented upon is but the logical result of the more stringent constitutional limitation upon the power of the legislature to place its acts into immediate effect. Should the opinions of Justices Bruce and Christianson become the law of this state, such legislation as is suggested would not, it is true, be required; but in my judgment, it is a safer policy to amend defieiences in existing laws, if they are considered to be deficient, by proper legislative action rather than accomplish the same end by judicial legislation. As I read the opinion of Mr. Justice Christianson, it begs the whole question by starting with the proposition that it is the duty of the court to sustain and apply the legislative intention. The question is not what the legislature intended. That is perfectly clear. The real question is whether the intention they entertained was so expressed so as to become law authorizing what was done in carrying out this intention.
For- the foregoing reasons I think there should be a judgment of' ouster.