— This action is brought by the appellant to obtain from the appellee, and for the relator, possession of a certain office, and the privilege to exercise the duties thereof, known and designated as “ chief of the division of mineral oils.”
The complaint alleges the following state of facts, to wit: That on the 9th day of May, 1889, the Governor of the State of Indiana properly and lawfully appointed and commissioned one John Collett as “ director of the department of geology and natural resources of the State of Indiana;” that on the 11th day of May, 1889, the said John Collett took and subscribed the oath of office on the back of said commission, and on said day deposited a duly certified copy of said oath in the office of the secretary of state of Indiana; that the said Collett possessed the requisite qualifications, etc.; that on said day the said John Collett, as such director, etc., duly and lawfully appointed and commissioned the relator herein chief of said division, etc., under the name and style of “inspector of mineral oils ;” that on the 11th day of May, 1889, said relator took and subscribed the oath *22of the office, as required by law, and on said day filed the same in the office of the secretary of state, and on said day executed a bond to the State of Indiana in the sum of $10,000, conditioned, etc., and that the relator was duly qualified, etc.; that soon after the relator’s appointment and qualification he appointed a suitable number of deputies, and in every way prepared himself to perform the duties of his office, and is still prepared so to do; that on the 28th day of February, 1889, one Sylvester S. Gorby intruded into and now usurps and unlawfully holds and exercises the said office of “ director of the department of geology and natural resources for the State of Indiana,” by virtue of a pretended election to said office by the General Assembly of the State of Indiana at its last session; that he is unlawfully exercising and holding, and pretending to exercise and perform the duties of said office; that on the 28th day of February, 1889, said Gorby unlawfully pretended to appoint the defendant herein to be “ chief of the bureau of mineral oils,” under the name and title of “inspector of mineral oils;” that acting under said pretended appointment the said defendant, on said 28th day of February, 1889, intruded into and now usurps and unlawfully holds and exercises the duties of “ inspector of mineral oils,” collecting fees, etc.; that the defendant now is, and always has been, without any other claim or title to said office than as above stated; that after the relator’s appointment and qualification he demanded the possession of said office of said defendant, who refused, and still refuses, to surrender the same. Wherefore, etc.
In an act of the General Assembly for the State of Indiana, which came into force on the 26th day of February, 1889, Elliott’s Supplement, beginning with section 1863, we find the following provisions :
“ Section 1. Be it enacted by the General Assembly of the State of Indiana, That a department of geology and natural resources is hereby established for the purpose of continuing and perfecting the geological and scientific sur*23vey of this State, of discovering, developing and preserving its natural resources; recommending and securing the enforcement of laws providing for the health and personal safety of all persons engaged in developing or using the products of its natural resources, and collecting and disseminating information concerning its agricultural, mining and manufacturing advantages. The said department shall comprise four divisions, as follows: First. The division of geology and natural science. Second. The division of mines and mining. Third. The division of mineral oils. Fourth. The division of natural gas.
“ Sec. 2. The General Assembly shall, immediately after the taking effect of this act, elect a competent and suitable person, skilled in geology and natural sciences, director of the department of geology and natural resources, who shall be state geologist and curator of the museum and chief of the division of geology and natural science. He shall take an oath of office, as other officers, and hold his office for a term of four years, and until his successor is elected and qualified. He shall appoint the chiefs of divisions provided for in this act, and such other assistants as he may deem necessary in prosecution of the work in the division of geology and natural science, but in no case shall the expenditures under his direction exceed the amount authorized by the General Assembly. The Governor shall, by appointment, fill any vacancy that may occur in the office of director of the department, from any cause, when the General Assembly is not in session, and the person so appointed shall serve as director of the department until the next succeeding session of the General Assembly, when a successor shall be elected by the General Assembly: Provided, however, That no such appointee shall, during such temporary holding, remove any of the chiefs of divisions then serving, but may temporarily fill any vacancies in said offices of chiefs of divisions that may occur by reason of death, resignation or removal from the State during his incumbency of said *24office of director. The compensation of the director of the department shall be two thousand dollars per year, to be paid as other salaries are required by law to be paid.
“ Sec. 6. The office of state inspector of oils is hereby abolished, and the chief of the division of mineral oils, who shall be known as the inspector of mineral oils, shall in all respects perform all the duties now required by law of the state inspector of oils, and receive therefor the same fees and compensation now provided by law for the state inspector of oils. His annual i’eport shall be made to the director of the department, and shall be included in the published report of the director of the department, and he and his assistants shall, in every way, comply with the law pertaining to the inspection of oils not repealed by the provisions of this act.”
For the duties and compensation of the “ inspector of mineral oils,” we are, by the act creating the office, referred to an act of the Legislature, approved September 19, 1881, beginning with section 5151, R. S. 1881.
We do not deem it necessary to make any quotation from that act. It is sufficient to say, that the duties of the inspector of mineral oils pertain to the State at large, and are to be performed for the benefit of the whole people of the State. He is not confined, in the performance of his official duties, to any locality or district, but his authority extends over the entire State. That he is a public functionary there can be no question; the duties which he has to perform are public duties. The act of the Legislature creating the office and defining the duties of the incumbent recognizes him as a public officer, and the position which he holds as an office for the benefit of the public. And as he is an officer whose duties are co-extensive with the State, he is.necessarily a State officer.
Having arrived at the conclusion that the office is a State office, and its incumbent a State officer, we are confronted with the question, was there a vacancy in the office at the *25time the relator claims to have been appointed? This question divides itself into two inquiries :
First. Has the Legislature the same general power to fill that it has to create offices ?
Second. If it has, then may it create two offices, elect the incumbent to one of them, and provide that he shall apppint the incumbent to the other ?
Unless the two inquiries can be answered in the affirmative there was a vacancy in the office in question when the relator claims to have been appointed, for the reason that there was a vacancy eo instahti — the creation of the office. In our State Constitution we find the following constitutional provision:
“ Article 3, section 1. The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial, and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.”
The word “ function;” as here used, means duty; and the clause may be read, “ and no person charged with official duties under one of these departments shall exercise the duties of another, except as in this constitution expressly provided.” This constitutional provision is easily understood; it is clear and concise in expression.
When applied to the question under consideration, one of two conclusions must follow, or the Legislature was without power to elect the director of the department of geology and natural resources, and therefore without power to confer upon him the power to appoint the appellee to the office in question: (1) The power to appoint to office must be a legislative function, or (2) express power must be lodged somewhere in the Constitution to make such appointment.
We can not give our consent to the affirmative of either of these propositions.
The first inquiry then is, what is legislative power? We *26copy from the case of City of Evansville v. State, ex rel., 118 Inch 426, commencing on page 441 : “ The word ‘ legislative ’ is defined by Worcester as follows : ‘ That makes or enacts laws; lawmaking. “ Legislative power.” Of, or pertaining to, legislation or to a Legislature ; as, “ Legislative proceedings.” ‘ Legislative ’ is defined by Zell as follows : ‘ Making, giving, or enacting laws. Relating or pertaining to the passing of laws.’ Webster defines ‘ legislative ’ as follows: ‘Giving or enacting laws; as, a legislative body. Pertaining to the enacting of laws; suitable to laws; as, the legislative style. Done by enacting; as, a legislative act-.’ Wharton, in his lexicon, defines ‘ Legislation,’ as follows : ‘ The act of giving or enacting laws.’ ‘Legislature: the power to make laws.’ Abbott, in his law dictionary, under the head of ‘ legislate,’ has the following : ‘ To make laws. * * Legislature: the body of persons in the State clothed with authority to make laws. * * * Legislative power : that one of the three great departments into which the powers of government are distributed— legislative, executive and judicial — which is concerned with enacting or establishing, and incidentally with repealing, laws.’ ”
“We find the following in Sinking-Fund Cases, 99 U. S. 700, 761, speaking of the judicial and legislative departments : ‘ The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it.’ Legislative power is the power to enact, amend or repeal laws. Lafayette, etc., R. R. Co. v. Geiger, supra; Cooley Const. Lim. 90; Hawkins v. Governor., 1 Ark. 570; Wayman v. Southard, 10 Wheat. 1, 46; Greenough v. Greenough, 11 Pa. St. 489.”
When we come to examine article 4 of the Constitution, we find that the powers and restrictions placed upon the legislative department are more specific and definite than are applied to either of the other departments. We continue the quotation :
*27“ Article 4 is composed of many sections, but they all relate to the exercise of legislative power and matters incidentally connected therewith. Section 16 of that article reads: ‘ Each house shall have all powers necessary for a branch of the legislative department of a free and independent State.’
“We quote the following from a very able opinion by Chief Justice Thompson, in Page v. Allen, 58 Pa. St. 338 (98 Am. Dec. 272): ‘ The expression of one thing in the Constitution, is necessarily the exclusion of things not expressed. This I regard as especially true of constitutional provisions, declaratory in their nature. The remark of Lord Bacon, “ that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things enumerated,” expresses a principle of common law applicable to the Constitution, which is always to be understood in its plain, untechnical sense. Commonwealth v. Clark, 7 W. & S. 127.’
ct If article 3, section l,had never been placed in the Constitution, the rule of construction as stated by* Judge Thompson and Lord Bacon, applied to section 16 of article 4, supra, would exclude the Legislature from exercising any other than legislative power. But the framers of the Constitution were not satisfied, after the experience that the people had had under the old Constitution, to rely upon the well known rules of legal construction, and, therefore, section 1, article 3, was placed in the Constitution, expressly confining each department to its own jurisdiction and functions, except so far as expressly provided otherwise.”
At this point we desire to call attention to the ease of Wright v. Wright, 2 Md. 429 (56 Am. Dec. 723) : “By the third section of the bill of rights, the inhabitants of Maryland are declared entitled to the common law of England, * subject nevertheless to the revision of, and amendment or repeal by, the Legislature of this State.’ And by the sixth section of the same instrument it is said, 1 the legislative, executive and judicial powers of government, ought to be for*28ever separate and distinct from each other.’ The evident purpose of the declaration last quoted, is to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the Legislature, and such as are executive in their nature to the executive. Within the particular limits assigned to each they are supreme and uncontrollable.”
The powers of the three great governmental departments are classified under our Constitution, the same as in the Maryland Constitution, but in ours the language is much more emphatic and explicit. "Whatever may be said of the Constitutions of other States, it can not be successfully maintained that under the Constitution of this State the Legislature possesses latent, or undefined power.
Looking to the different provisions of our Constitution any argument which can be made to maintain the affirmative of this proposition will apply equally to the other departments; each derives all the power which it has by virtue of the Constitution.
It must be conceded that ours is a State government, made up of delegated powers; to deny this is to deny that the people are the source of power. Originally all power resided with the people; this proposition we have never found contradicted by any court, or writer upon elementary law. We start, then, with this proposition, the people are the source of all power. It follows, therefore, as a logical conclusion, that until they divest themselves of that power it continues to abide with them.
When the Constitution of 1816 was set aside, the people thereby resumed to themselves their original power. When they adopted the present Constitution they parted with some part of that original power. The inquiry then arises, what became of it ?
They delegated legislative power to the Legislature, judi*29cial power to the judiciary, and that of an executive character to the executive of the State, with certain limitations.
At the risk of extending this opinion, we must quote again section 1, article 3 :
“ The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.”
This article of the. Constitution being the one relating to the distribution of powers between the three departments of the State government,- how can it be asserted, with any regard for the rules of logic and reason, that the Constitution simply imposes a limitation on the legislative department, and is, at the same time, but a grant as to the other departments. The correct and logical conclusion must be that the residuum of power abides with the people, and that the three governmental departments have only such power as has been delegated to them in the Constitution. Any other position is illogical and inconclusive.
We take the following from the opinion in the case of State, ex rel. Holt, v. Denny, 118 Ind. 449: “Atthe adoption of the State Constitution all power was vested in the people of the State. The people still retain all power, except such as they expressly delegated to the several departments of the State government by the adoption of the Constitution. The legislative, executive and judicial departments of the State have only such powers as are granted to them by the Constitution. In the first section and first article of the Constitution it is declared ‘ that all power is inherent in the people.’ It is contended by counsel that as certain rights were granted and certain other rights reserved by the people, therefore all rights were granted, except such as were expressly reserved. The peculiarity of the theory is, that while the people, by the Constitution, made grants of *30power to three different departments of government, it is contended that all power that was at that time in the grantor, the people, passed to one branch of the government, viz., the political or legislative branch, and that it took all power not mentioned in the instrument, and the executive and judiciary took only such as was expressly granted to them, and the people retained such only as was specifically named and reserved. It is certainly a novel method of construction, and contrary to all the rules for construing contracts, deeds, wills and other written instruments, and it seems to us that the proposition need but to be stated to prove its fallacy.”
That the power to appoint to office is not a legislative function it seems there can be no question.
Is it an executive function ? That the power to appoint to office is intrinsically an executive function, has been decided over and over again, and so held by this as well as other courts.
Upon this question, so long settled and well understood, there ought to be no difference of opinion, and there has been no contention to the contrary until within the last few years.
In the case of State, ex rel., v. Noble, 118 Ind. 350, beginning on page 361, the judge delivering the opinion said : “ Counsel for the defendants refer us to the case of Taylor v. Com., 3 J. J. Marsh. 401, where it is held that the appointment to office is intrinsically an executive function. Other courts have asserted a like doctrine. Thus, it was said in State v. Barbour, 53 Conn. 76, that ‘Appointments to office, by whomsoever made, are intrinsically executive acts.’ But if we were to accept this doctrine as correct, and give it full application, then it would completely destroy the claim of the defendants, for if the right to appoint can never be anything else than an executive act, the attempt of the Legislature to appoint the claimants was utterly abortive. But we do not understand the authorities to assert that the selection of offi*31cers is always an executive act; on the contrary, the authorities hold that, while the power is intrinsically executive, it may be exercised by a court or by a legislative body, as an incidental power of an independent department of the government. No one would, we confidently assume, be so bold as to assert that the Legislature may not appoint officers connected with its duties and proceedings, and there is no more reason for denying the power to the courts than there is of denying it to the Legislature. The truth is, that all independent departments have some appointing power, as an incident of the principal power, for without it no department can be independent. State v. Barbour, supra; Achley’s Case, 4 Abbott Pr. Rep. 35.’
“We are not here dealing with the general power to appoint, but we are dealing with a single phase of the general question, and we do no more than affirm that each department must have, and does have, some appointing power, and that where an appointment is essential to the proper exercise of a judicial duty, the court concerned has authority to make the appointment. If this be not true, then no court can appoint a guardian, an administrator, a receiver, a referee, an appraiser or a commissioner. It is, in truth, impossible to conceive of the existence of an independent judicial department without the power to make some appointments.”
The quotation which we have made lays down the correct rule, if we understand it correctly. That is, that the power appoint to office is an executive function, but may be exercised by the Legislature, or the courts, as an incident of the principal power, that is, where necessary to the exercise of that legislative or judicial power. This must be so, other-, wise it would be impossible for either the judicial or legislative departments to exercise the powers delegated to them.
The following is a quotation from State, ex rel. Jameson, v. Denny, 118 Ind. 382, beginning on page 386 :
“ It is claimed that the appointment to an office is an executive function, and that by the terms of our Constitution *32the General Assembly is prohibited from filling an office created by it, unless such office is connected with the duties imposed upon it as a legislative body. This contention arises out of the provisions of section 1, article 3 of the Constitution, which is as follows. (The constitutional provision is then set out). In the case of Wright v. Defrees, 8 Ind. 298, it was said by this court that ‘ The powers of the three departments are not merely equal, — they are exclusive,in respect to the duties assigned) to each. They are absolutely independent of each other.’
“ In the case of Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185, this court, in speaking of the above constitutional provision, says: ‘ The same division of powers exists in the Federal Constitution, and in most, if not all, of the State Constitutions, and is essential to the maintenance of a republican form of government. These departments of government are equal, coordinate, and independent. The duties imposed on each are separable and distinct, and it is expressly provided, that ifno person, charged with-official duties under one of these departments, shall exercise any of the functions of another.” The persons charged with the execution of these powers are alike elected by, and are responsible to, the people, in whom resides the sovereignty of the State. This division of power prevents the concentration of power in the hands of one person or one class of persons.
“ The same language is used substantially in Smith v. Myers, 109 Ind. 1; State v. Governor, 1 Dutch. 331; Ex Parte Dennett, 32 Me. 508; Low v. Towns, 8 Ga. 360; Mauran, v. Smith, 8 R. I. 192; Hawkins v. Governor, 1 Ark. 570; Houston, etc., R. W. Co. v. Randolph, 24 Texas, 317; People v. Bissell, 19 Ill. 229; Dickey v. Reed, 78 Ill. 261; Rice v. Austin, 19 Minn. 103; Western R. R. Co. v. DeGraff, 27 Minn. 1; Secombe v. Kittleson, 29 Minn. 555; Sill v. Village of Corning, 15 N. Y. 297; People v. Albertson, 55 N. Y. 50; Cooley Const. Lim., star pp. 87, 88, 93, 114, 175; Sedgw. Const. & Statute Constr. (2d ed.), 132,138, 184. * *
*33“ Judicial power is the power to construe and intérpret the Constitution and thé laws, and make decrees determining controversies, and is vested in the courts.
“ The executive power is the power to execute the laws, and is vested in the Governor of the State, the administrative officers of the State, counties, townships, towns and cities. Then, to which one of these departments does the appointment to office belong ?
“ If the General Assembly should create an office, by statute duly passed by it, providing that it should be filled by appointment, the act of filling such office is a partial execution of the law. * *
“ Generally, then, the appointment to an office is an executive function. It must be conceded, however, that it is not every appointment to office which involves the exercise of executive functions, as, for instance, the appointments made by judicial officers in the discharge of their official duties, or the appointments made by the General Assembly of officers necessary to enable it to properly discharge its duties as an independent legislative body, and the like. Such appointments by the several departments of the State government are necessary to enable them' to maintain their independent existence, and do not involve an encroachment upon the functions of any other branch. But the appointment to an office like the one involved here, where it is in no manner connected with the discharge of legislative duties, we think involves the exercise of executive functions and falls within the prohibition of section 1, article 3 of the Constitution.”
In City of Evansville v. State, ex rel., supra, it was said : “ The power to appoint to office is not a legislative function, but belongs to the executive department of the government; ” and the cases of Lafayette, etc., R. R. Co. v. Geiger, supra; Hawkins v. Governor, supra; Wayman v. Southard, 10 Wheat. 1; Greenough v. Greenough, 11 Pa. St. 489, and *34Cooley Const. Lim. 90, cited. See State, ex rel. Holt, v. Denny, 118 Ind. 449.
In Am. & Eng. Encyc. of Law, vol. 3, 686, we find the following statement of the law : “ The power of appointing and removing subordinate executive officers is generally, by the American Constitutions, vested in the chief executive.”
We come now to the other branch of the question. Does the Constitution confer upon the Legislature express power to fill a vacancy in an office of the character of the one under consideration, or, like that of “ director of the department, of geology and natural resources.” If there is such a constitutional provisions we have failed to find it, and our attention has been called to none.
The word “ expressly ” being the word that is employed in the constitutional provision, section 1, article 3, Worcester defines as follows : “ In direct terms; plainly.” He defines the word “ express ” as follows: “ Given in direct, terms; not implied; not dubious ; clear; definite; explicit; plain; manifest.”
The word “ expressly ” is defined by Zell as follows: “ Not by implication; plainly; distinctly.” The word “ express ” he defines as follows : “ To set forth in words; clear; plain;. direct; not ambiguous.”
Webster’s definition of “ expressly ” is : “ In an express, direct, or pointed manner; in direct terms; plainly.” His definition of the word “ express” is: “ Directly stated; not implied or left to inference; distinctly and pointedly given made unambiguous by special intention ; clear; plain.”
The only constitutional provisions that in any way relate-to the subject under consideration are the following.
Section 13, article 2, which reads as follows : “ All elections by the people shall be by ballot; and all elections by the General Assembly, or by either branch thereof, shall be viva voee.”
Section 30, article 4: “ No senator or representative shall, during the term for which he may have been elected, be eli*35gible to any office, the election of which is vested in the General Assembly; nor shall he be appointed to any civil office of profit, which shall have been created, or the emoluments of which shall have been increased, during such term; but this latter provision shall not be construed to apply to any office elective by the people.”
Section 10, article 4: “ Each house, when assembled, shall choose its own officers (the president of the senate excepted), judge the elections, qualifications, and returns of its own members, determine its rules of proceeding, and sit upon its own adjournment. But neither house shall, without the consent of the other, adjourn for more than three days, nor to any place other than that in which it may be sitting.”
Section 5, article 5 : “ The persons, respectively, having the highest number of votes for Governor and Lieutenant-Governor shall be elected ; but in case two or more persons shall have an equal, and the highest, number of votes for either office, the 'General Assembly shall, by a joint vote, forthwith proceed to elect one of the said persons Governor or Lieutenant Governor, as the case may be.”
Section 18, article 5: “ When, during a recess of the General Assembly, a vacancy shall happen in any office, the appointment to which is vested in the General Assembly; or when, at any time, a vacancy shall have occurred in any other State office, or in the office of judge of any court, the Governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified.”
Article 15, section 1: “ All officers whose appointments are not otherwise provided for in this Constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.”.
All the foregoing sections, except the last one, are, as will be observed by reading them, so foreign to the question under *36consideration that we need call attention to none of them except the last one.
It is quite clear, we think, that under the provisions of this section, where the Constitution does not provide otherwise for the filling of a vacancy in an office, that the Legislature may provide the manner in which it shall be filled. But unless it is an office created for the purpose of enabling one of the other departments the better to perform its functions, the power of appointment must be lodged with the executive department. This constitutional provision confers no appointing power on the Legislature except as to offices in existence when the Constitution came into force.
" The power to create an office is one thing, and the power to appoint the incumbent is another; the one is a legislative act, and the other is, as we have seen, an executive function.
In Jones v. Perry, 10 Yerger, 59 (30 Am. Dec. 430), it is said : “ The fact that the Constitution may prescribe that the mode of appointing the judges shall be by the Legislature does not constitute the Legislature the constituent.” See State v. Kennan, 7 Ohio St. 546 ; City of Evansville v. State, ex rel., supra; State, ex rel., Jameson, v. Denny, 118 Ind. 382; State, ex rel., v. Noble, supra. To hold otherwise would be to wipe out, by judicial construction, article 3, section 1.
“ The Legislature, like other departments of the State government, can only exercise such powers as have been delegated to it, and when it steps beyond that boundary its acts, like those of the most humble magistrate in the State who transcends his jurisdiction, are utterly void.” Taylor v. Porter, 4 Hill, 140 (40 Am. Dec. 274); Pumpelly v. Village of Oswego, 45 How. Pr. R. 219; Campbell’s Case, 2 Bland, 209 (20 Am. Dec. 360, 373). And the following from State, ex rel., v. Noble, supra, which is equally applicable to the executive as to the judicial departments : “ The domain of the judiciary is not so extensive as that of the other departments, but no other power can enter that domain with*37out a violation of the Constitution, for within it the power of the judiciary is dominant and exclusive.
In Wright v. Defrees, supra, it was said: “ The powers of the three departments are not merely equal, — they are exclusive, in respect to the duties assigned to each.” And Wright v. Wright, supra, is to the same effect.
In the Am. and Eng. Encyc. of Law, vol. 3, 685, it is said : “ Such powers as are specially conferred by the Constitution upon the executive department, or upon any designated officer, the Legislature can not require or authorize to be performed by any other officer or authority. * * * *
Where the Constitution confers the power of appointing to office upon the executive department, appointments can not be made by legislative enactment.”
But as the opinions delivered in the cases of State, ex rel. Holt, v. Denny, supra; State, ex rel. Jameson, v. Denny, supra; and City of Evansville v. State, ex rel., supra, discussed and passed upon the power of the Legislature to create offices and fill vacancies therein, and in this particular were concurred in by a majority of the court, we do not understand that the power of the executive department to appoint to offices like the one involved in this case is longer an open question. As the writer of this opinion said, in the opinion in City of Evansville v. State, ex rel., supra, and says now, speaking merely for himself: “ Practical construction is of very little consequence when it is exercised in violation of the plain provisions of the Constitution.” It is of more importance and consequence when it is in accord with the Constitution, but whether entitled to much or little weight, to the extent that there has been such construction, it seems to have been in favor of the power of the executive department to appoint officers belonging to the class in question. But suffice as to this. Section 5152, R. S. 1881, fixed the term of office of the “ state inspector of oils” at two years, and as section 1868, Elliott’s Suppl., refers to the former act for the duties and emoluments of said officer we are inclined to the opinion *38that it still governs as to the term of his office, as no term is fixed by the latter act.
Filed Nov. 7, 1889.As all the officers provided for in the present Constitution were made elective by the qualified voters of the State, which is, in this respect, radically different from the pi’ovisions of the old Constitution, and in view of the fact that soon after the adoption of the present instrument other State offices were created and made elective, we must presume that it was, and is, the spirit and intention of the present Constitution that all such offices as relate to the public at large, either district or State, are elective, and that when a vacancy occurs the executive department may appoint and commission until-the next following general election, at which time the people may elect an incumbent to said office.
The complaint fails to allege that the Governor of the State had theretofore appointed and commissioned the relator to fill the said vacancy in said office, and is, for that reason, technically bad.
The said office being a State office, the Legislature could not delegate the power to some other State officer to appoint and commission the relator, though that officer may have been duly appointed and commissioned. In so far as the act of the Legislature seeks to deprive the executive of the State of his constitutional prerogative to fill by appointment vacancies in the offices named in said act of February 26, 1889, it is unconstitutional and void. The said act may antagonize another provision of the Constitution, but as the question is ignored in the briefs of counsel we have not considered it. "We refer to section 16, article 5, of the Constitution. Because of the absence of an averment in the complaint that the relator had been appointed by, and held a commission from, the Governor of the State, the complaint is bad, and the court did not err in overruling the demurrer thereto.
Judgment affirmed, with costs.