*177SEPAEATE CONCUEEING OPINION.
GEAVES, J.I concur in most that is said by our brother Kennish in this case, but for reasons somewhat different. Owing to this situation I prefer to concur in the result of his opinion, and express my own reasons for so doing.
I have no question that a right conclusion has been reached in view of what this court has heretofore said upon what I conceive to be a vital question in this case. Before 'going to the merits of the particular case, a few general observations may not be malapropos. The question is one of most serious moment. It suggests the idea whether the Legislature can do by indirection a thing which it could not directly do. The case should be stripped of all matters, except pure questions of law. If the rider placed upon the bill under consideration is valid exercise of the legislative function, then the Legislature can absolutely stop the wheels of State, because the members thereof have conceived a dislike to some worker in the several departments. If this rider or proviso is valid, then the Legislature could stop the Auditor’s office until such time as the Auditor appointed deputies to the liking of the Legislature. The Legislature could say that they would appropriate so much for the support of such department provided none of such appropriation should be used so long as John Jones was a clerk in such department. Yet, under the law, the Auditor has the right to select his own assistants. He is responsible for their conduct, whether good or bad, and for such conduct he must answer. If his assistants are satisfactory to him, the head of the department, why should the Legislature have the right to stop all work in that office until such time as the Auditor should discharge the offensive employee? If such a law was passed and the work of the State thus retarded, the *178seriousness of the situation would be such as to retire every member of the Legislature lending support to the measure. The business of the State and the enforcement of its laws should not be dependent upon the petty whims of individuals or a combination of individuals, but should be dependent upon broad statesmanship.
It is begging the question to say that such a proviso does not oust the censured party from office. If there had been a proviso similar to the one in hand attached to the appropriation to the Auditor’s office, providing that none of such appropriation should be used for the purposes of the State so long as the present incumbent remained in office, it would not have been more objectionable than the one now before us. No officer can afford to serve the State without the pittance allowed by law. No officer can get clerks and other assistants without the assurance that there is cash with which to pay them. With an appropriation subject to a proviso of the kind in question, it is trifling with words and trifling with common sense and common experience to say that the officer has not been removed from office. Technically, he has not by direct words been removed, but when the lifeblood is sapped from the body death ensues. When the tap root is severed, the tree dies. When the expenses of a department of the State are stopped with the indications apparent upon the face of this bill, the offices of that department are in effect vacant. The head of no department can afford to work and in addition pay the expenses of his department.
In addition to this, the precedent is bad. Let such a proviso be upheld and the end is not in sight. It opens the field for partisanship rather than statesmanship to administer the affairs of State. It opens the field for one party to make reprisals from' the other. The theory is not only dangerous, but one to be condemned.
*179To my mind the question, facing this court is the most serious ever heretofore presented. The game department may he small and insignificant as compared to others, hut the questions involved in this controversy affect all, and their seriousness bespeaks a most careful consideration.
It may he and should be conceded that the Legislature can refuse to appropriate at all'for the mainteuance of any or all departments, yet that does not meet the question here. If such department boldly, bluntly and willfully refuses to sustain the other departments of State, the only remedy is the good conscience and judgment of their constituents. But that is not the vital question here. In this case the Legislature determined that their game laws should he enforced. :They determined that the appropriation should he made, hut to that appropriation they tacked on a proviso which strikes at the powers of another department. In the body of the hill the appropriation is made, hut by the proviso they undertake to say to the .Governor there is one man whom you cannot select to enforce these laws. This, we think, under our own holdings, is beyond their power, a matter we more fully discuss presently. There are but two real questions in this case to my mind, and they are, (1) is this proviso valid, and (2) if not, can it be severed from the act, and leave a completed and good hill or law.
These questions I shall take in order.
I. That our Constitution contemplates three separate and distinct departments of government is not questioned. That one cannot seriously interfere with the other is not questioned. There should be at least a spirit of comity between the three, and the one should not undertake to trespass upon the powers and duties of the others. Personally, I have always thought that in statutory offices the Legislature could within reasonable bounds, and for the general good, place some *180restrictions upon the Governor in the matter of making appointments to these statutory offices. As the trial judge upon the circuit, in the case of State ex inf. v. Washburn, 167 Mo. 680, I entertained such views, but my views were not adopted by this court, and if that case is controlling in this, as I think it is, I hardly think this the time or place to overrule it, if it be wrong. Let it be overruled with proper dignity in a cause devoid of questions which can clearly be read between the lines in this case. But I repeat that I have not changed my original views in the Washburn case. Personally, I have gone further and conceded that the Legislature can make some reasonable limitations upon powers of this court. Vide dissenting opinion in Railroad v. Gildersleeve, 219 Mo. l. c. 185-202. Nor have I changed my views upon this question. In neither case have my individual views been adopted by the court, and in the case at bar I feel constrained to follow the law just as it has been heretofore written. Under the Washburn case this proviso is invalid. To my mind the Washburn case cannot be read out of this case by saying that the question was different. A vital question of that case was the right of the Legislature in creating an office to place restrictions upon the appointive power of the Governor. As above stated I thought' then and I think now that reasonable restrictions in the interest of good government may be made, but such was not the views of this court. The law under consideration in the Washburn case undertook to limit the appointive power of the Governor by saying that he should select one officer out of three names presented to him by a certain designated city committee. Speaking of that question in the Wash-burn case, we said:
“There is .another constitutional standpoint from which this case should be viewed, and from which the Act of 1899, in question, is equally indefensible. By article 3, it is ordained as follows: ‘The powers of *181government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted.’
“All governmental powers are in their natures either legislative, executive or judicial. The Constitution does not undertake to define what acts fall within one class or the other, but leaves every act to be classified according to its nature, recognizing that the essentials which distinguish those that belong to one department from those that belong to the two others, are discernible to the learned mind. But in that article of the Constitution all the powers of the State government are disposed of, and every one who lawfully exercises any State governmental function is able to trace the source of his authority to one of the three departments there named. The power, whatever its character, can be exercised only by or under authority of the separate magistracy to which by the Constitution it is assigned.
“The election commissioner is an officer who exercises an important function of the State government, affecting not alone the city in which his duties are performed, but the whole State. He fills, therefore, in its full sense, the definition of a public officer. He is not a State officer within the narrow meaning of that term as used in section 12, article 6, which confers jurisdiction on this court in cases in which a State officer is a party, but he is an officer of the State in the sense that a sheriff or a circuit clerk is an officer of the State. [State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v. Bus, 135 Mo. 325; State ex rel. v. Higgins, 144 Mo. 410.] A public officer exercising a *182function of the State government is an agent or servant of the sovereign people of the State, and must, derive his authority either by election by the people or appointment by that tribune to whom the people have confided the power of appointment. It is therefore necessary that he should trace his title to. the office to the department of the State government to which, under article 3 above quoted, the power to confer title to such an office is committed.
“But suppose, when called into court to show by what authority he holds the office, he shows that he has been appointed by the city central committee of his political party, to what department of the State government would we charge the appointment? It may be said, however, that the committee is not to make the appointment, it is to be made by the Governor. If the Governor of his own free will makes the appointment, even if he selects one of the three nominated by the committee, it is his appointment and the appointee may truly say that he holds by appointment under the executive department. But we are concerned now with the question of the power of the Legislature to compel the Governor to make the appointment from one of the three named by the committee and we are asked to say that the Governor, by force of this act, cannot do otherwise than register the will of the committee.
“If that is the law, then, in reality, what would be the source of an appointment under it?
“We are referred to section 9 of article 14 of the Constitution which is: ‘The appointment of all officers not otherwise directed by this Constitution shall be made in such manner as may be prescribed by law/ And it is contended that that section confers authority on the General Assembly for this act. That section expressly authorizes the General Assembly, acting within its legislative capacity, to pass a law prescribing the manner in which an appointment shall be made, *183but it does not authorize the General Assembly to make the appointment itself, nor authorize anyone unconnected with the government to do so. To provide by law the manner in which an appointment shall be made is one thing, to make the appointment is another j the one is in its nature legislative, the other is essentially executive. The Constitution authorizés the Legislature to do the one, but not the other.”
It is argued that this proviso does not attack the executive power. Directly, it perhaps does not, but indirectly it says to the executive department that (1) you must have Tolerton resign, in order that the laws may be enforced, and (2) that you cannot reappoint Tolerton. Suppose Tolerton should resign to-day, and then the Governor undertook to reappoint him to the place, would there not be a restriction upon the free will of the Governor to make such appointment? We think so. Suppose we go further and suppose that the Legislature was creating for the first time the office of Game Warden, and in that bill provided that the Governor should appoint such officer, but by proviso limited Ms appointive power so that Tolerton could not be appointed, would- such proviso be valid under the Washburn case? We think not. If by proviso they could exclude, one man from the consideration of the Governor in making the appointment, they could exclude more than one. If they could exclude more than one, they could exclude all but one, and in this way make their choice the choice of the Governor.
To my mind under the views expressed in the Washburn case there is no doubt that this proviso treads upon the power of the executive department, and is violative of the constitutional provisions pointed out in the Washburn case, supra.
Even under the view that the Legislature can make reasonable restrictions upon the power of the Executive Department, yet it would be doubtful whether tMs could be called a reasonable restriction. At any rate *184if a public official has been derelict in duty, the law affords ample means to get rid of him, but his case is not to be tried before the Legislature. I am firmly convinced that this proviso, and provisions of this character, are not only invalid, but that they should be promptly condemned by the courts in the interest of reasonable comity and harmony between the different departments of State. The general tendency of such legislation is bad.
II. Can this proviso be rejected and leave a valid law? This question is likewise fully answered by the Washburn case, supra. The act in question in the Washburn case so far as material, reads: “There is heréby created a board of election commissioners for each city that is governed by the provisions of this act, composed of three members, who shall be appointed as follows: Within ten days after this act takes effect, the Governor shall appoint three election commissioners, one of whom shall be by him designated as the chairman of the board, and one of whom shall be by 'him designated as the secretary of the board, which said three election commissioners shall hold their offices for the term of three years, and until their successors are appointed and qualified . . . One of said election commissioners so appointed by the Governor shall be a member of the leading party politically opposed to that to which the chairman and secretary so appointed belong and shall be chosen from three eligible citizens named by the city central committee of the said leading party politically opposed to that to which the chairman and secretary belong. ’ ’ This was the Act of 1899. [Session Laws of 1899, p. 197.]
This court held the latter clause invalid, yet it said there was a good law left, and Washburn should be reinstated in office, although appointed in violation of the last clause of the law. Upon there being a valid law left, after having severed therefrom this emphatic *185clause, we then said, at page 697: “The point is advanced that if the Act of 1899 is unconstitutional in the particular named, the whole act is void and the incumbent has no title to the office. The power attempted to be conferred on the partisan committee is not an essential element in the whole act. Where the part of an act that is unconstitutional does not enter into the life of the act itself, and is not essential to its being, it may be disregarded and the rest remains in force; that is this case. The record shows a perfect title in appellant to the office in question, and, therefore, the judgment of the circuit court is reversed.”
In that case we went to the very bowels of the act and cut out a member. Can it be said in the face of that ruling that the invalid proviso in this law cannot be lopped off, and yet léave a valid law? In the Washburn case we carved from the very heart of the act, and yet said that which was left was a good law. In so doing we may have been right, although I am not committing myself to that rule, but whether right or wrong it is the rule last announced in cases of this character. There is just as much reason in saying that the Legislature would not have passed the Act of 1899, supra, without this clause stricken therefrom, as to say that the Legislature would not have passed the act under consideration without the proviso. If we revert to history and conditions, one was just as much the fixed intent of the Legislature as the other. In the Act of 1899, the Legislature had the fixed intent of trying to get fair elections by having at least one active partisan on the Board of Election Commissioners, who was opposed politically to the powers that be at Jefferson City. It was reasonable, because we all know that it requires the activity of opposing partisans (if we may use that word) to insure absolutely fair elections. The intent of the Legislature was at least clearly fixed and pointed out in the Act of 1899, *186as in the one in question. The Act of 1899 was at least commendable in its purposes and designs. From it, however, we carve out one of the vital things in the minds of the legislative body and say enough is left to make a good law. Can we, or should we do less in this instance? I say not, and repeat that if the doctrines of the Washburn case are to be overruled upon either of the questions argued, it should come under different surroundings. For these reasons I think the writ should go, and for these reasons I concur in the result reached in the majority opinion.
Lamm and Ferriss, JJ., desire to be marked as concurring in these views as well as those in the principal opinion.