Dissenting Opinion.
Elliott, C. J.— I am fully persuaded that the Legislature ought not to have the general power to create and to fill offices of its own creation, and that if the opinions of the great thinkers of our country had been given full force it would have no such power; but, while I am persuaded that it should not have this power, my judgment is thoroughly convinced that it does have power to create and to fill a class of offices, and that the office in controversy belongs to that class. I regret the conclusion, but I can not escape it. I have searched with all-possible care,.but I can find no decision which sustains the contention of the relator, that the appointing power resides in the Governor. I find no conflict, but entire unanimity, for in every case that I have seen it is affirmed that, unless expressly prohibited by constitutional provisions, there is a class of offices which the Legislature may create, and fill by appointment. In a very recent case, that of Biggs v. McBride, 21 Pacific Rep. 878, the Supreme Court of Oregon had before it the same question which faces us, and the court said: ' “ Now, if it could be *42shown that the power to oppoint all officers which are not expressly made elective by the people, is a part of the ‘ chief executive power of the State/ the appellant’s contention would be sustained; but no authority whatever has been cited to sustain this view, nor is it believed any exists; on the contrary, the provisions of the fifth article of the Constitution, which .relates to the executive department, all seem at variance with this view. The framers of this instrument evidently designed that no prerogative power should be left lurking in any of its provisions. No doubt they remembered something of the history of the conflicts of the prerogative in that country from which we inherited the common law.” The same question was before the Supreme Court of California within the last three months, and it was said by the court, in speaking of the views of Jefferson, that, “ No doubt these views as to the intrinsic nature of the power of appointment, or of nomination, to office, and the expediency of confining it to the executive department of the government, are entitled to the highest consideration; but the question here is not what the Constitution ought to be, but what it is; or, in other words, what was the intention of its framers as to this particular matter. Of course, if there had been, at the time of its adoption, a general consensus of opinion in harmony with the views of Mr. Jefferson, we should be forced to conclude that its framers intended to forbid to the Legislature the exercise of the power of appointment to office. But there was- no such consensus of opinion. On the contrary, it had not only been decided in other States of the Union, under constitutions containing provisions substantially equivalent to the sections above quoted from our own, that the Legislature could fill offices by itself created; but our own Supreme Court, construing provisions of our old Constitution, had come to the same conclusion. People v. Langdon, 8 Cal. 1.”
. In the ease of People v. Hurlbut, 24 Mich. 44, it was urged that the Legislature had no appointing power, and in con*43sidering this argument it was said: “ This view of the nature of legislative power, as urged by the counsel for the respondents, struck me at first with considerable force; but reflection and further examination have satisfied me that, though true as to the great mass of legislative power — that which is most broadly distinguished from both judicial and executive — yet it does not include the whole field of what is generally recognized as legislative power, not only in England, but in most of the States of the Union. Besides the power to make general rules for the government of officers and persons, and regulating the rights of classes of persons, or of the whole community, there is a large class of powers recognized as legislative, occupying an intermediate space between these general rules and regulations, and those of a judicial character on the one side, and executive on the other, and which are not, and can not be, marked off’ from these by any clear and palpable line.” In 1839 the Supreme Court of Illinois discussed and decided the question which we are considering. In the course of the opinion of the court, Wilson, C. J., said : “ The next grant of power relied on is, that ‘ The executive power of the State shall be vested in a Governor.’ This clause is treated by the court below as conferring numerous and ample powers upon the Governor. All that are usually denominated executive powers, by theoretical writers, are supposed to be included in this grant to the Governor, except such as are expressly conferred upon other departments. This, I think, I shall be able to show is a mistaken view of the subject.” Field v. People, 2 Scam. 79.
In State, ex rel., v. Irwin, 5 Nev. 111, the court said, perhaps rather too strongly, that, “ In the Constitution of the State of Nevada, the appointing power of the Legislature is neither cut up by the roots, nor in any manner hampered, save where the Constitution itself, or the Federal Constitution, provides for filling a vacancy. The former prescribes the mode of filling vacancies only as to State officers and members of the Leg*44islature; the latter, as to United States senators and representatives in Congress. In every other case the power is in the Legislature, to be by it regulated by law, as is evident from the fact that no provision is made save as to vacancies.” This doctrine, broad as it is, the same court approved in a later case, State, ex rel., v. Swift, 11 Nev. 128. Perhaps the principle has never been more clearly stated than by the great constitutional lawyer whose statements, as Emerson says,“ lay in daylight.” That lawyer said : “ The inferences which, I think, follow from these views of the subject, are two : first, that the denomination of a department does not fix the limits of the powers conferred on it, nor even their exact nature; and, second (which, indeed, follows from the first), that in our American governments, the chief executive magistrate does not necessarily, and by force of his general character of supreme executive, possess the appointing power. He may have it, or he may not, according to the particular provisions applicable to each case in the respective constitutions.” Webster’s speech on the Presidential Protest. But I can not, without unduly prolonging this opinion, make further quotations ; and I must therefore refer, without comment, to some of the many decisions which, as I interpret them, support my conclusion : Mayor, etc., v. State, ex rel., 15 Md. 376; State, ex rel., v. Lusk, 18 Mo. 333; Bridges v. Shallcross, 6 W. Va. 562; Kilbourn v. Thompson, 103 U. S. 168; Walker v. City of Cincinnati, 21 Ohio St. 14; State, ex rel., v. Harmon, 31 Ohio St. 250; Com., ex rel., v. Baxter, 35 Pa. St. 263; Baker v. Kirk, 33 Ind. 517 ; State, ex rel., v. Harrison, 113 Ind. 434; Hovey v. State, ex rel. Carson, 119 Ind. 395; Hovey v. State, ex rel. Riley, 119 Ind. 386.
The conclusion dcducible from these authorities is, so far as it is here necessary to ascertain it, that where the Legislature has power to establish a scientific department, or to establish any public institution, it has, as an incident of that power, the right to select the means and agencies it deems necessary to carry into effect the law it has enacted.
*45The case of State, ex rel., v. Kennon, 7 Ohio, 546, is not in point, for the reason that the Constitution of Ohio, wisely as I think, forbids the Legislature from appointing any officers. The cases which I have cited from other States are all founded on Constitutions similar to ours; some of them, indeed, are based on Constitutions in words the same as our own. If the question were one dependent upon authority alone it would be my duty, as a judge, to yield to the law as it has long existed, however much my inclination as a citizen may oppose; but the conclusion established by authority is the only one which, in my judgment, can be vindicated on principle. No other can be reached save by trampling upon long settled and .well known principles. With much more of brevity than the importance of the question merits, I shall refer to some of the principles which control my judgment.
If the power to appoint is exclusively executive, the provisions of our Constitution expressly designating the cases in which the Governor may appoint are meaningless; but the words of an instrument of such a solemn and high nature as that of the organic law of a sovereign State can not be disregarded. Courts have no right to treat them as dead and unmeaning; on the contrary, each word is to be deemed one of life and strength. Giving force to the various provisions of the Constitution, which designate the cases in which the Governor may appoint to office, it must be held that he can appoint in no others, for it is a rudimental principle that the express mention of one thing implies the exclusion of all others.
It can not be held that words were vainly placed in such an instrument as the Constitution of a State, for that principle and authority sternly forbid; nor can it be held that words written in such an instrument are fruitless.
If the Governor possesses the power of appointment, as an inherent and exclusive attribute of executive power, then the many provisions designating the cases in which he may appoint, for there are many of them, are vain and fruitless; *46since, if the power is an- inherent executive element, these provisions are utterly meaningless. If it be true that the vesting of the executive power of itself carried the right to appoint to office, then there are many provisions in our Constitution to which no force can be ascribed. Word after word, and clause after clause, must be treated as mere waste matter, if the power to appoint is inherently and exclusively executive. In written constitutions there are no meaningless words.
I do not believe that the power to appoint to office is essentially legislative, but I do believe that the people, who are absolutely and inherently sovereign rulers, may make it legislative. I believe that, to a limited extent, they have done so. Section 18, of article 5, does so by the clearest implication. It declares that “ 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.” This provision can not mean strictly legislative offices ; that is, such offices as are directly and immediately connected with legislative action, for the Legislature has an inherent right, by virtue of its departmental sovereignty, to appoint such officers, and the predominant principle which separates the departments of government precludes the executive from appointing a purely legislative officer. There is, however, a plainer provision of the Constitution, and that provision is this: “ All officers, whose appointment is not otherwise provided for in this Constitution, shall be chosen in such manner as now is, or may hereafter be, prescribed by law.” This confers some power and a broad discretion — neither an unlimited power nor an unfettered discretion, to be sure— upon the General Assembly, and it is within the power and the discretion of that body to enact such a law as will authorize *47it to itself appoint a class of officers, or invest another department with that authority. If, in other words, that body can, as the Constitution ordains it may, provide by law for the appointment of a class of officers, it may enact a law providing that it may itself appoint. This, it seems to me, must be so, for the reason that no limit is placed upon that body as to the means it shall select, but all is confided to its discretion in cases where it may enact a law establishing a scientific bureau, or department.
The question, as I conceive, is not what, in the abstract, is a legislative or an executive power, but what does our Constitution ordain shall be a legislative power. What the people, in constitutional convention assembled, declared a legislative power is such, for their decision is beyond review by any department of government. That the Constitution does invest the General Assembly with some powers beyond that of enacting laws, and, therefore, with something more than purely, or abstract, legislative power, I, for my part, can not doubt. One of the powers, neither abstractly nor purely legislative, thus conferred is that of appointing to office in a limited class of cases. Our present Constitution intended to limit, and does materially limit, the power of the Legislature to appoint to office, but it does not entirely destroy it.
It is to be remembered that where delegated governmental authority is not expressly or impliedly lodged elsewhere it resides in the Legislature. The Legislature, if the figure be not too bold, may be likened to a residuary legatee; what does not go elsewhere goes to it under the general delegation of power. Sharpless v. Mayor, 21 Pa. St. 147, 161. In a work of an elementary character, but, for all that, a very valuable one, Judge Cooley says: “ And whenever a power is not distinctly either legislative, executive, or judicial, and is not by the Constitution distinctly confided to a department of the government designated, the mode of its exercise, and the agency, must necessarily be determined by law; in *48other words, must necessarily be under the control of the Legislature.” Principles of Const. Law, 44. “ The authority that makes the laws,” says this eminent author, in another work, “ has a large discretion in determining the means through which they shall be executed ; and the performance of many duties which they may provide for by law they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty. What can be definitely said on the subject is this: That such powers as are specially conferred by the Constitution upon the Governor, or upon any other specified officer, the Legislature can not require or authorize to be performed by any other officer or authority ; and from those duties which the Constitution requires of him he can not be excused by law. But other powers or duties the executive can not exercise or assume except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or confide to other hands.” Const. Lim. (5th ed.), 136.
The application of this principle is not difficult. For example : The Legislature has power to establish a scientific department, or an agricultural department, and having this power it may select its own means and instruments; that is, appoint the officers who are to take charge of the department created. I can not, for the reasons I have outlined, assent to the conclusion that the act under consideration is void because it assumes to invest the Legislature with authority to appoint to office.
I have no doubt that the act does,violate section 19 of article 4 of the Constitution. That section reads thus : “ Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the * title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” *49The act assumes to assemble in one group offices of a radically different character, some of them offices under the police department, others offices in a department of a purely scientific nature. The department of geology is, in itself, a complete subject, and the provisions of the act relative to coal oil inspectors and mine inspector relate to different subjects. The inspection of mines is a subject of itself, and so is the inspection of coal oil, and regulations on these subjects, since they necessarily interfere with private rights, can only be sustained under the police power of the State, while the establishment of a scientific bureau, or department, is a subject of an essentially different nature. Subjects so diverse can not be embodied in one act, since to permit this would be to permit the evil which the provision of the Constitution quoted was designed to destroy. Indiana, etc., R. W. Co. v. Potts, 7 Ind. 681; Grubbs v. State, 24 Ind. 295; State, ex rel., v. Tucker, 46 Ind. 355 (360); Johnston v. Spicer, 107 N. Y. 185 (202); Leach v. People, 122 Ill. 420; Cutlip v. Sheriff, 3 W. Va. 588; Davis v. State, 7 Md. 151; State v. Harrison, 11 La. Ann. 722; State v. Heywood, 38 La. Ann. 689; People v. Mahaney, 13 Mich. 481 (490); Ballentyne v. Wickersham, 75 Ala. 533 (539); Payne v. Mahon, 41 N. J. L. 292; Skinner v. Wilhelm, 63 Mich. 568; People v. Beadle, 60 Mich. 22; Murphy v. State, 9 Lea, 373; Ragio v. State, 86 Tenn. 272; State v. McCann, 4 Lea, 1; City of San Antonio v. Gould, 34 Texas, 49.
The act plainly betrays its own weakness, for it declares that it covers four divisions, and of these, three, at least, are complete and distinct subjects, each requiring and receiving different treatment. Names go for but little, and naming the subjects divisions does not make them mere parts of one general subject. "Whether they are each subjects, or all mere parts of one subject, is to be determined from their essential elements, for the Legislature can not, by any mere *50form of words, change the nature of a thing, and by that, course evade the Constitution.
Filed Nov. 7, 1889. Filed Nov. 7, 1889.