Dissenting Opinion by
Judge Clay.Only a question of constitutional law is presented. By the act in question the legislature saw fit to provide for a great public improvement -through agencies of its own creation. . As the act is held invalid on the sole ground that appointment to office by the legislature is an invasion of the province of the executive, it necessarily results that, if this ground is not sufficient, there is no basis whatever for the majority opinion. It is true that section 27 of the Constitution provides for three separate and distinct departments of government, the legislative, executive and judicial, and that section 28 of the Constitution provides that “No person or collection of persons, being of -one of those departments, shall exercise any power properly belonging to either of the others except in instances hereinafter expressly directed or permitted.” No one appreciates more than I the necessity for giving full effect to these provisions of the Constitution, and if I were persuaded that the act in question was repugnant thereto I would not hesitate to vote with the majority of the court. But it is one thing to provide that no department shall exercise any power properly belonging- to either of the others, and an entirely different thing to define with accuracy the line of demarcation which separates these departments one from another. The words, “property belonging,” must mean-either (1) those powers exclusively conferred by the Constitution -on the particular department, or (2) those powers which have always been exercised exclusively by the particular department. In view of the peculiar provisions of -our Constitution, I -doubt if there is any room whatever for the second proposition, but I shall discuss the question from the standpoint of both propositions. In the first place, there is no provision of our Constitution which, expressly or impliedly, confers on the executive the sole power of appointment. Indeed, so far as the Constitution is concerned, liis power of appointment is confined to the filling of vacancies and the appointment of certain officers not here involved. Sections 76, 152 and 222 of the Constitution. Not only so, but the Constitution goes further and provides, “Inferior state officers not specifically provided for in this Constitution may be ap*33pointed or elected in such a manner as may be prescribed by law for a term not exceeding four years and until their successors are appointed or elected and qualified.” Section 93, Constitution. But it is insisted that the power to prescribe the manner of appointment does not carry with it the power to make the appointment. It is true that the courts of Indiana and Missouri so hold, hut other courts of equal standing’ have taken a contrary view. In the case of Travelers Ins. Co. v. Oswega Tp., 59 Fed. 58, 7 C. C. A. 669, the Circuit Court of Appeals for the Eighth Circuit had before it the construction of section 1, article 15, of the Constitution of Kansas, which provides: “All officers, whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law. ” Speaking through Judge Sanborn, a jurist of great ability, the court said: “The right to prescribe the method of appointment thus vested in the legislature'necessarily carried with it the right to authorize that appointment to be made by the legislature itself.”
The Constitution of Maryland confers on the executive the appointment of all officers not otherwise provided for “unless a different mode of appointment be prescribed by the law creating the office.” It was held in the case of Mayor, etc., of Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572, that the foregoing provision of the Constitution authorized the legislature not only to create the office, but to fill it by appointment. In discussing the question the court said:
“The Constitution surely designed to repose some discretion in the legislature, both over the mode of appointment and the propriety and necessity of passing any law on the subject to which the exercise of the power might relate. It seems difficult to suppose that the people, through the Constitution, would intrust to that branch of government nearest to the source of power the right to create an office, and to indicate others to appoint the officers and ibe unwilling to place the appointment with the legislature itself. The Constitution must receive an interpretation according to the sense in which the people are supposed to have understood its language; but it ought also to be construed with reference to the previous legislation of the state: State v. Wayman, 2 Gill & J. 285. And when such power has been exercised by the legislature from the earliest period of the government, is it unreasonable to suppose that the people were aware that *34the same might occur again, unless prohibited by the Constitution! If there is no prohibition, express or implied, it would result from this view that the people intended the legislature should continue to exercise the power. ’ ’
Not only are these cases convincing, but sound reasoning permits of no other interpretation of our Constitution. The power to prescribe the manner of. the appointment of infeiior state officers necessarily carries with it the power to deal generally with the whole .subject, and therefore the power to provide how, when and by whom the appointment shall be made, as well as the consequent power to make the appointment itself. That being true, our Constitution not only does not confer o.n the executive the sole power to appoint inferior state officers, or deny such power to the legislature, but clearly confers the power of appointment on the legislature itself.
Let us now look at the question in the light of the legislative and judicial history of our several states. To begin with, much stress is placed on the fact that Chief •Justice Eobertson, in the case of Taylor v. Commonwealth, 3 J. J. Mar. 401, used the following language: “Appointment to office is'intrinsically executive.”
Let us examine that language in the light of the facts. It appears from the opinion that the county court of Campbell entered an order declaring that James Taylor had forfeited and vacated his office of clerk of the court and appointing John N. Taliaferro clerk pro hem. To reverse that order, Taylor, who had been removed, prosecuted a writ of error. This court held that the county court of Campbell, in making the order of removal and appointment, acted only in an executive and not a judicial capacity, and that being true, a writ of error would not lie. The case, therefore, is authority only for the position that appointment to office, though made by the court, is merely an executive act, which cannot be reviewed by writ of error." It is not authority for the contention that appointment to office is exclusively an executive function. Clearly there is a wide difference between an executive act which may be performed by any one of the departments, and an exclusively executive funoton which can be performed only by the executive department. The distinction is clearly pointed out in the case of Mayor, etc., of Baltimore v. State, supra, where the court used the following language:
*35“It is contended that, the power of appointment 'being an intrinsic executive function, the naming of the commissioners in the law was in violation of the sixth article of the Declaration of Eights, ‘that the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other, and no person exercising the functions of .one of said departments .shall assume or discharge 'the duties of any other.’
“We are not prepared to admit that the power of appointment to office is a function intrinsically executive, in the sense in which we understand the position to have been taken; namely, that it is inherent in, and necessarily belongs to, the executive department. Under some forms of government, it may be so regarded, but the reason does not apply to our system of checks and balances in the distribution of powers, where the people are the source and fountain of government, exerting their will after the manner, and by instrumentalities, specially provided in the Constitution. The case cited, Taylor v. Commonwealth, 3 J. J. Mar. 401, affirms that it is intrinsically executive;-but the judge explains that the nature of the power is executive, whether exercised by the Governor -or a court, as distingudshd from those acts of the court that are merely judicial. But it is nowhere intimated that another department than the executive cannot exercise the power. On the -contrary, the case was disposed of on the ground that the court had the power to appoint the clerk, and that its judgment could not be interfered with by way of appeal from the order of appointment. And indeed, here it is admitted that the executive cannot act where other modes of appointment are prescribd by the Constitution. It is true that certain powers'are peculiar to each department, as their designations -import: Wright v. Wright’s Lessee, 2 Md. 452, 56 Am. Dec. 723; the legislature makes -the law's, the judiciary expounds them, and the Governor sees that they are faithfully executed ; but even in this duty, he is restrained in some degree, because they must be enforced according to the Constitution and laws, and not at his. will and discretion. It does not follow as a necessary conclusion that, in order to perform his duty, he must have agents of his own nomination. Our form of government, in its various changes, has never recognized this power as an executive prerogative. Under the Constitution of 1776, although appointments were generally made by the Governor and council, some of the most important were not. Eegisters of -wills *36were commissioned by tbe Governor, on the joint recommendation of the 'senate and house of delegates, the power of the Governor and council to make an appointment being limited to vacancies during the recess of the legislature, and then to continue only until its next meeting. So the clerks of courts were appointed by the judges, the power of the executive being restricted to cases of vacancy, and until the meeting of the court. This, however, was changed by the .amended Constitution of 1836, which conferred the power of appointment on the Governor, by the advice and consent of the Senate, a branch of the legislature, yet pro hac vice discharging executive duties. If we look to the present Constitution, we find a similar state of things. The clerks and registers and other officers are elected by the people, but when vacancies occur, the office is not in all cases, though in some, filled by the executive. In such emergency, the clerks and state’s attorneys are appointed 'by the court, the register of wills by the orphans’ courts, constables by the county commissioners, etc.; and as to the clerk -of the Court of -Appeals, the -executive department has no power whatever, the appointment residing with the judges. Under the old Constitution the treasurer and commissioner of loans were appointed by the house of delegates, the Governor’s power extending only to cases of vacancy; and under the present, the treasurer as well as the librarian receive their appointments from the legislature. These instances are sufficient to show that the Constitution, so far from treating’ this as an inherent executive power, indicates that it belongs where the people chose to place it.”
In the case of Sinking Fund Commissioners v. George, 104 Ky. 260, the question was sharply presented, and after an elaborate discussion of the authorities, it was held that-the act of March 5,1898, creating a board of penitentiary commissioners was not unconstitutional, on the ground that the power of appointment was exercised by the legislature itself. That case was followed in the cases of Purnell v. Mann, 105 Ky. 87, 48 S. W. 407; Poyntz v. Shackelford, 107 Ky. 546, 54 S. W. 855, and Sweeney v. Coulter, 109 Ky. 295, 58 S. W. 784, but was afterwards departed from in the case of Pratt v. Breckinridge, 112 Ky. 1, 65 S. W. 136, 4 L. R. A. 79, but, as will hereafter appear, that case is not in accord with the great weight of authority.
*37I have not had the time to search the statutes for the purpose of ascertaining in how many- instances the power of appointment has been exercised by the legislative and judicial departments. For years and years the legislature elected the warden of the penitentiary. For years and years it has continued to elect the state librarian. For years this court elected the custodian of the public grounds, and at the present time the bond recorder of the city of Louisville is elected by all seven judges, although his duties concern only the criminal courts.
Let us now' see what the courts of other states have to say on the question. In the case of People v. Langdon, 8 Cal. 16, vTe find the following:
“The power to fill any office is political, and the power is exercised in common by the legislature, the' governors, and other executive officers of every state in {lie Union, unless it has been expressly withdrawn by the organic law of the state. That it has not been by our Constitution there can be no doubt: First, because there is no clause that would warrant such a construction; and, second, because there, are several that would forbid it.
“It would be useless to pursue this argument further. This power has always been exercised by the legislature, and never before denied. It is not prohibited by the Constitution, and according’ to the theory and spirit of our institutions, is safer when exercised by the immediate representatives of the people than when lodged in the hands of the executive.”
In the subsequent case of People v. Freeman, 80 Cal. 233, 13 A. S. R. 122, it was held that the power of appointment was not an exclusively executive function, but might be exercised by the legislature itself. In an elaborate note to that ease, Mr. Freeman sums up the doctrine as follows:
“The truth is that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive or judicial department. It is commonly exercised by the people, but the legislature may, as -the law making power when not restrained by the Constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has committed it to the legislature, and a judicial function, or at least a function of a judge, *38when the law has committed it to any member or members of the judiciary. The legislature, unless inhibited by the Constitution, may exercise its power in either of the three modes: (1) It may, by a statute, create an office, and name persons who .are to fill it. State v. Seymour, 35 N. J. Law 48; Daley v. City of St. Paul, 7 Minn. 390; Mayor of Baltimore v. State, 15 Md. 376, (74 Am. Dec. 572). (2) It may by law create an office, and provide that it shall be filled by election or appointment by the legislature in joint convention assembled. People v. Langdon, 8 Cal. 1; People v. Fitch, 1 Cal. 536; and the principal case. (3) It may, after creating an office, provide that it may be filled by appointment made by any person or by the members of a voluntary association, as by the members of the chamber of 'commerce, and the presidents and vice presidents of the marine insurance companies of a certain city, or by the members of the. board of underwritei'S of such city; nor is it necessary that the persons thus designated be citizens of the United States, and authorized to vote as such. Sturgis v. Spofford, 45 N. Y. 446; In re Bulger, 45 Cal. 556.”
In the case of People v. Morgan, 90 Ill. 558, the court said:
“The executive power in the state is understood to be that power, wherever lodged, which compels the laws to 'be enforced and obeyed. The instrumentalities employed for that purpose are officers, elected or appointed, who are charged with the enforcement of the law. But the power to appoint is by no means an executive function, unless made so by the organic law or legislative enactment; and in this case it is not so unless the.power is thus conferred. If it were conceded that these appointments were the exercise of political power, would it necessarily be violative of any provision of the Constitution? The division and allotment of powers are not into political, executive and judicial, but into legislative, executive and judicial. It was, no doubt, the exercise of political power, as that embraces all governmental powers and functions, whether exercised by one department or another, or the officers of one or the other. Political power is the policy of government or its administration, and may be exercised either in the formation or administration of government, or both. Hence it follows that, if it be a political power, that of itself in no wise militates pgainst its exercise by a person belonging to the judicial department of the government. ’ ’
*39In Overshiner v. State, 156 Ind. 187, 59 N. E. 468, 51 L. R. A. 748, 83 A. S. R. 187, the court said:
“W'e concede in fullest terms appellant’s contention that our state government is composed'of three’ distinct and co-ordinate branches, viz., the legislative, executive (including the administrative), and judicial, and that the powers that are committed by the people to one branch cannot be exercised by those performing duties in another .without express authority to do’.so, or the exercise of such powers becomes essential or appropriate to the effective discharge of the duties imposed upon such branch. And while it has been many times decided by this and other courts that, as a general rule, the power of appointment to office is an appropriate executive prerogative, yet, as said by Mitchell, J., in Hovey v. State, 119 Ind. 401, 21 N. E. 21: ‘It is a fundamental error, however, to assume that the exclusive right to exercise the power of appointment- is included in the general grant of power to the executive. ’ In the distribution of governmental power the people had the undoubted right to lodge any part nf it where it pleased them, and, when expressly placed, the court will suffer no encroachment upon it by those acting in another department; but where the .Constitution is silent, and the question is one of public policy, or relate® to the best means or -agency for the attainment of some governmental end, it must be presumed that the framers of the Constitution intended to invest the legislative body with a large discretion in the selection -of the agencies most suitable and beneficial to the public.”
In the case of Cox v. State, supra, the court used the following langmage:
“First, as to -the power of the legislature to make appointments to office: In the United States the general power to appoint officers is not inherent in the executive or in any other branch of the government. It is a prerogative of the people, to be exercised by them or that department -of the state to which it has been confided by the Constitution. The legislature has, we think, power to make appointments to office, unless its powers in that respect are restricted by the Constitution, either expressly or by implication.”
The Constitution of Tennessee is the same as ours, and the Supreme Court of that state had the following to say in a very able opinion delivered by Judge Shields in the case of Richardson v. Young, 122 Tenn. 471:
*40“Whatever may have been its nature theoretically, in practical application in this country, this power has not been considered as belonging to either of the departments, or any.general rule observed in vesting it. It will hardly be found vested in the same way in the fundamental law of any two of the states. In every case involving the right of its exercise by a particular department, courts are necessarily to he governed by the special provisions of the Constitution of the state where the question arises. We think, from a general review of the authorities, that it is now established that under the American form of government the power of election or appointment to office is a political power, not inherently legislative, executive or judicial, but which may be vested with equal propriety in either of them, and that it is so treated and applied in a majority of the states.
“There is some conflict in judicial opinion upon this question, resulting generally from the differences in the fundamental law of the several states; but we think our conclusions are supported by the weight of authority, especially by the decisions of the courts of the states which have constitutional provisions concerning the appointing power identical or similar to those of this state.
“Among other cases are those of People v. Langdon, 8 Cal. 16; People v. Morgan, 90 Ill. 558; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Overshiner v. State, 156 Ind. 187, 59 N. E. 468, 51 L. R. A. 748, 83 Am. St. Rep. 187; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122; Cox v. State, 72 Ark. 97, 78 S. W. 756, 105 A. S. R. 17; Americus v. Perry, 114 Ga. 881, 40 S. E. 1004, 57 L. R. A. 230; People v. Hurlbut, 24 Mich. 63. 9 Am. Rep. 103; Atty. Gen. v. Bolger, 128 Mich. 355, 87 N. W. 366; State v. Irwin, 5 Nev. 111; Sturgis v. Spofford, 45 N. Y. 446; Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; People v. Bennett, 54 Brab (N. Y.) 481; State v. George, 22 Ore. 142, 29 Pac. 356, 16 L. R. A. 737, 29 A. S. R. 586; Biggs v. McBride, 17 Ore. 648, 21 Pac. 878, 5 L. R. A. 115; Fox v. McDonald, 101 Ala. 51, 13 South 416, 21 L. R. A. 529, 46 A. S. R. 98; Ex Parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Cherry v. Burns, 124 N. C. 761, 33 S. E. 136; Cunningham v. Sprinkle, 124 N. C. 642, 33 S. E. 138; State v. Seymour, 35 N. J. Law 54; Hovey v. State, 119 Ind. 401, 21 N. E. 21; Ex Parte Gerino, 143 Cal. 414, 77 Pac. 166, 66 L. R. A. 249; State v. Rosenstock, 11 Nev. 128; Sinking Fund *41Com’rs v. George, 104 Ky. 260, 47 S. W. 779, 84 S. S. R. 454 .. .
“Cases cited by complainants as sustaining their position that the appointing power is inherently an executive function, belonging to the executive, are State v. Kennon, 7 Ohio St. 546; State v. Stanley, 66 N. C. 59, 8 Am. Rep. 488; People v. Bledsoe, 68 N. C. 457; State v. Offill, 74 Neb. 669, 105 N. W. 1099; State v. Hocker. 39 Fla. 477, 22 South 721, 63 A. S. R. 174; State v. Barbour, 53 Conn. 76, 22 Atl. 686, 55 Am. Rep. 65; State v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65; Evansville v. Indiana, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93; Jameson v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79; Pratt v. Breckinridge, 112 Ky. 12, 65 S. W. 136, 66 S. W. 405; Taylor v. Com., 3 J. J. Marsh. 401; State v. Washburn, 167 Mo. 680, 67 S. W. 592, 90 A. S. R. 430.
“The Ohio and North Carolina cases are not authority here because the constitutions of those states, when these decisions were made, absolutely prohibited the legislature from exercising any appointing power.
“After the North Carolina cases were decided, the Constitution of that state was amended so as to eliminate the prohibitory clause, and under a provision similar to article 7', section 4, of the Constitution of Tennessee, it was held that the General Assembly could exercise the power directed. Cherry v. Burns, 124 N. C. 761, 33 S. E. 136; Cunningham v. Sprinkle, 124 N. C. 642, 33 S. E. 138.
‘ ‘ The Florida case is not in point, as the Constitution of that state committed the appointing power to the people and the Governor, when not otherwise expressly vested in that instrument.
“The cases of Taylor v. 'Commonwealth and State v. Barbour, supra, while stating abstractly that the power is an executive function, do not really involve the question here presented.
■ “The Indiana cases cited do support complainant’s position; but the contrary seems to have been held in Hovey v. State, 119 Ind. 395, 21 N. E. 21, and Overshiner v. State, 156 Ind. 187, 59 N. E. 468, 51 L. R. A. 748, 83 A. S. R. 187, from which we have quoted.
“The cases of State v. Washburn and Pratt v. Breckinridge, supra, fully sustain complainants; but, so far as our investigations have extended, the courts of Missouri and Kentucky .stand alone in adhering strictly to the doctrine of the exclusive right of the executive to exercise *42the appointing power, in the .absence of constitutional provisions vesting it otherwise. We do not think it is necessary, in the view we have taken of the question, to review these eases. ”
To the foregoing I may add the following from 12 C. J., p. 836:
“By some authorities the power of appointment to office is regarded as per se an executive function, which, therefore, may not be exercised, vested or controlled by the legislature except in so far as it is a necessary incident to the exercise of legislative power or is vested by the Constitution in the legislature. By the great weight of authority, however, the power of appointment is held not to be per se an executive function, and unless the ap>pointment of particular officers is, by the Constitution, expressly conferred on the executive department or forbidden to the legislature, the latter may, by statute, vest the power of appointment in its discretion.”
It is clear from the authorities quoted, 'and from other authorities which I might quote if I had time, that from the foundation of our state governments to the present time, appointment to office has never been regarded as belonging exclusively to the executive department in the absence of a constitutional provision to that effect; and as our Constitution not only does not contain such a provision, but, properly construed, confers the power to ap* point inferior state officers on the legislature itself, there can be no doubt that the exercise of that power by that body is-not the exercise of a power “properly belonging” to the executive department.
Of course, I need take no time in discussing the “unnumbered woes” which, it is claimed, will follow if the legislature is permitted to exercise the power conferred by the Constitution. That is a matter which doubtless addressed itself to those who framed the Constitution, and it is apparent that they were not frightened by the prospect. I may add, however, that history records but few instances where the people have been oppressed by their representatives, but many instances where they have been the victims of tyranny on the part of their executives.
It is said in the majority opinion that Pratt v. Break-. inridge has been acquiesced in for a long time, and that the question should be finally settled. As a matter of fact, however, Pratt v. Breckinridge has never been acquiesced in, but has been entirely ignored. For years *43after it was liancled down, the legislature elected the prison commissioners, and no one questioned its .right, for the simple reason that no .one believed for a moment that the minority rule announced in Pratt v. Breckinridge would ever he followed by this court. It is true that the question should be settled,- but why not settle it in accordance with the established principles of constitutional law as repeatedly announced, not only by this -court, but by the great majority of the courts of this country?
Of course any attempt to distinguish between the election o-r appointment -of a .state librarian and the election or appointment of a state highway commissioner is a mere play upon words, and if it is to be regarded as the settled law of this state that appointment to office is an exclusively executive function, and that the legislature cannot appoint a state highway commissioner, it follows inevitably that the legislature is without authority to elect a state librarian.
For the foregoing reasons I respectfully dissent.