While concurring in the opinion in this case I am unable to agree with my brother Mitchell in the process of reasoning by which the conclusion is reached. I do not believe that the duty conferred on the General As^ sembly by the Constitution, to provide for the benevolent institutions of the State, carries with it the power to appoint officers to manage such institutions. Certainly no such power is expressed, and if it exists it must be by implication.
An appointment by the Legislature to an office not con*415nected with the discharge of its duties as a legislative body, involves the exercise of executive or administrative functions. By section 1, article 3, of the Constitution, it is prohibited from exercising such functions, unless the power to do so is expressly conferred upon it by the Constitution. It is not sufficient that language is used from which such power may be inferred; it must be expressly conferred.
Filed April 20, 1889. Filed April 20, 1889.In my opinion, section 1, article 15, when construed in connection with the law in force at the time of its adoption, does confer on the Legislature the power to appoint the appellee to the office he is now claiming. By the terms of that section the Legislature has the power to appoint such officers as it had the right to appoint under the law in force at the time of the adoption of the Constitution, unless a different mode of selection was provided for by the Constitution itself. It is upon this ground, and the practical construction heretofore given it, alone, that I am enabled to concur in the opinion in this case. I do not believe that the framers of the Constitution intended to confer on the General Assembly any general appointing power.
Separate Opinion.