(dissenting).
I do not agree with the majority opinion. I do not see any analogy between this case and those dealing with a public office. All of the cases relied on as condemning an appointment before the law creating the office became effective, or was approved by the governor, are cases having to do with public offices.
Here the members have no power or authority to enact legislation. Their only function is to investigate, assemble and collect information and report to the legislature. They have not been vested with any portion of the sovereign power of government. The members do not hold public office within the definition declared by this court in State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 Pac. 411, 53 A.L.R. 583, and other cases. The only holding to the contrary is the judicial fiat in State ex rel. Mitchell v. Holmes, 128 Mont. 275, 274 Pac. (2d) 611 which ought to be expressly overruled as unsupported by any authority and as being in conflict with the holding of all the courts throughout the country as pointed out in the dissenting opinion therein.
In my opinion the clause in section 2 of Chapter 265, Laws of 1955, providing that, “The members of the commission shall be appointed within fifteen (15) days after the passage and approval of this act” does not mean that the appointment must be made after the passage and approval of the Act. To so construe it would be to render the Act a nullity because the Act did not secure the approval of the governor until after the adjournment of the legislature. It would have been too late then for the speaker of the house of representatives and the committee on committees of the senate to act. It is not to be supposed that the legislature was doing an idle and useless act when it passed Chapter 265. It would not intentionally place *124a clause in the Act which would have the effect of defeating the operation of the Act itself.
In my opinion the only effect of the clause above quoted from section 2 of the Act was to mark a time limit for the making of appointments. The appointments cannot be made after the time fixed but may be made before. This is the construction that the members of the legislative assembly making the appointments placed upon the Act. And that is the way this court has interpreted similar Acts. Young v. Waldrop, 111 Mont. 359, 109 Pac. (2d) 59.
There is no prohibition against making the appointments before the passage and approval of the Act.
But if, by analogy, we regard the cases which treat of appointments to “public offices” before the law creating the office becomes effective as applicable here still the result pronounced in the majority opinion does not follow.
We must keep in mind here that the appointment of the members of the interim committee requires no confirmation. The appointment is nothing more than a designation by the speaker of the house and the committee on committees of the senate of the persons constituting the interim committee to investigate and collect data to be reported to the legislative assembly. When this designation is made, and if we assume here that it was made prematurely because made before the passage and approval of the Act, yet it was and is a continuing designation within the rule stated and followed in State ex rel. Giles v. Hyde, 105 Utah 436, 142 Pac. (2d) 665, and became efective the moment the law was approved.
Chapter 265 had a potential existence within the rule of Broadwater v. Kendig, 80 Mont. 515, 261 Pac. 264; Dunbar v. Cronin, 18 Ariz, 583, 164 Pac. 447; and 67 C.J.S., Officers, section 30, page 159, after it was passed by the legislature and awaiting approval bsr the governor. I see no logical distinction between a case where a law is passed and approved but is not to become effective until some time in the future, and a case, such as this, where it is passed by the legislature but not ap*125proved by the governor until after the appointment. Either the purported law exists as law or it does not. If potential existence justifies an appointment in the one ease, it should in the other. There is no sound reason why an appointment may not be made in anticipation of the event that the governor would approve the bill. If he did not approve the bill such appointment of course would fall. Even appointments to public office may be made in anticipation of the vacancy occurring in the future. State ex rel. La Nasa v. Hickey, 222 La. 17, 62 So. (2d) 86; Pashman v. Friedbauer, 4 N.J. Super. 123, 66 A. (2d) 568; State ex rel. Slivcky v. Lutz, 226 Ala. 497, 147 So. 429, and see 67 C.J.S., Officers, section 30, page 159.
For the greater reason the designation of certain persons to act as an investigating committee in anticipation of the fact that the governor will approve the bill passed by the legislature creating such committee should stand as a valid designation when and if the governor approves the bill, as here.
In my opinion we ought not by a refined and highly technical construction of the statute condemn the appointment here when it was made at the only time possible under the statute. I agree also with that part of the opinion of Mr. Justice Davis in which he points out that if claimants are not de jure members of the commission they are at least de facto members, and that is sufficient warrant for them to act as members of the commission and to be paid their expenses for so doing.
Many other contentions are made in the briefs of counsel, but since they are not considered in the majority opinion they require no consideration here.
I think the judgment of the district court should be reversed.