(dissenting). I dissent from the opinions and conclusions of the majority. .My views on the question are quite fully ■expressed in my specially concurring opinion in the case of State ex rel. Langer v. Crawford, 36 N. D. 385, 162 N. W. 711. I merely desire to add to what I have therein said the following suggestions:
The question is after all merely one of legislative intention. What •did the legislature intend when it passed the act creating the board of regents, and containing the provision that:
“And thereafter during the session of the legislative assembly, and prior to the 15 th 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 *251board 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.”
Did the legislature, when it passed this provision, intend that it should be nugatory, and that, in spite of its requirement that the members of the board of regents should be appointed subject to the consent of a majority of the senate, the appointment could be made without that consent ? Did it intend that the governor could ignore the plain terms of the statute, and, by thus ignoring them, assume to himself the unlimited and uncontrolled power of appointment?
I think not. If the governor can do this in this case he can do it in the case of all other boards and appointive officers, and he can do it indefinitely. If he could refuse to submit nominations and to yield to the will of the senate in 1917, he can refuse to do so in 1919 and in 1921, and he can indefinitely usurp to himself the sole and exclusive appointing power. Ulrich v. Koustmern, 135 Ky. 562, 122 S. W. 857.
The office of the board of regents is one of great consequence. It involves the control of the most important educational institutions in the state and the disposition of immense sums of money. When the legislature created the board of regents, and took the control of the various state institutions from their separate boards of trustees, it ■clearly intended that it itself should have the ultimate power of appointment, and that such trustees as had been legally appointed by it should hold their offices until their successors were also legally appointed. It, .•and not the governor, was the master and the source of power. It was it that created the appointing or nominating power of the governor, ¡and it alone. The inherent right of appointment, indeed, is in the legislature, and not in the governor; and the governor has no power in the matter except such as the legislature chooses to confer upon him.
The Constitution merely gives him the right to alone fill vacancies when no other method is provided by law, § 78. When the legislature ■created the board of regents it, in the same act, provided how its members should be appointed; and though it granted to the governor-a •certain voice and power in the matter, it especially limited that voice ■and that power, and made it ultimately subject to its own will. The legislature, in short, merely created a nominating committee in the *252person of the governor, who should suggest appointments or nominations. It did not create an agent of unlimited power. A representative assembly or association is not required to accept the report of one-of its nominating committees, and the report of a nominating committee does not amount to an election. In the same manner a nomination by the governor does not in itself and without the consent, that is to say, a vote of the majority of the senate, amount to an appointment. It is clear that the present incumbents must hold office until their successors are legally appointed. Any other holding would be a mockery, a trifling with words, and a playing with the cause of popular-government. The Constitution of North Dakota makes of the governor an executive officer, and not an autocrat. He is a constitutional officer, and his powers are defined by the law and by the Constitution.
The only vacancies which he can fill without the consent of the senate are those which necessarily and unavoidably occur. They are not those of his own arbitrary and illegal creation. It was his duty to submit nominations to the senate, and to keep on submitting them until its consent and approval were obtained. He could not by a neglect of this official duty seek to create a vacancy and then by an assumption of power seek alone to fill it. There in short was no vacancy, or, if there was, there was none which the statute authorized him alone to fill. See discussion and cases cited in my former opinion in State ex rel. Danger v. Crawford, supra. See also People v. Parker, 37 Cal. 639; People ex rel. Mitchell v. Sohmer, 209 N. Y. 151, 46 L.R.A.(N.S.) 1207, 102 N. E. 593; State v. Howe, 25 Ohio St. 588, 18 Am. Rep. 321; Baxter v. Latimer, 116 Mich. 356, 74 N. W. 728; People ex rel. Parsons v. Edwards, 93 Cal. 153, 28 Pac. 832; Brady v. Howe, 50 Miss. 607; Dunbar v. Cronin, 18 Ariz. 583, 164 Pac. 447.
Nor does the fact that the original appointment was for a fixed term, and that nothing is said as to the right to hold until a successor is legally appointed, create a vacancy; nor does the fact that the statute provides that new appointments shall be made when the term of office expires. These points I discussed in my former opinion. I merely wish to add to that discussion a reference to the following authorities: 2 McQuillin, Mun. Corp. pp. 1057, 1058, and cases cited in note 91; Robb v. Carter, 65 Md. 321, 4 Atl. 282; People ex rel. Baird v. Tilton, *25337 Cal. 614; Kreidler v. State, 24 Ohio St. 22; People ex rel. Hinton v. Hammond, 66 Cal. 654, 6 Pac. 741.
As far as the position taken by Justices Birdzell and Grace is concerned, that vacancies existed as far back as July 1, 1915, that the original appointment of the members of the board constituted a vacancy appointment merely, and that vacancies then existed which the governor alone could fill, — -I am of the same opinion as I was before, and my views are expressed in my opinion in State ex rel. Danger v. Crawford, 36 N. D. 385, 162 N. W. 710. In addition to this, however, I may add that at about the same time that the above case was decided the supreme court of Arizona passed upon a similar question, and came to the same conclusion as did Justices Christianson and myself in the case mentioned. See Dunbar v. Cronin, 18 Ariz. 583, 164 Pac. 447.
There is simply nothing in the argument that the present appointees would, under the holding suggested by me and argued for by the defendants, be given a longer term of office than the legislature first intended. Which, I ask, is better and more in accordance with the principles of a democratic government, — that men legally appointed by and with the consent of the senate should hold their offices until their successors are legally appointed and elected, or that men illegally appointed, and by the ipse dixit of the governor alone, and against the will of the people as expressed by their representatives in the senate, should hold such offices ? The days of the “Bump Parliaments” are over. Our Constitution has made of our governor an executive officer, and not an Oliver Cromwell. The majority opinion, however, has created a dictator, and, for the time being, abolished the parliamentary government, which it has taken the English-speaking and the liberty-loving world generally centuries of bloodshed and suffering and heroism to formulate and to create.