(concurring):
I concur in the majority opinion. I agree that the creation of the nominating commission does not violate the separation of powers (Article V, § 1) but when coupled with the requirement of advice and consent by the senate, the legislature gains a control over the judiciary which is constitutionally offensive. That control is offensive not because the legislature has taken over an executive function, but because it intrudes upon the independence of another branch of government.
Article VIII, § 3, directs that “Judges of the Supreme Court and District Judges shall be selected for such terms and in such manner as shall be provided by law ...” That language does not except laws enacted thereunder from compliance with the other sections of the Constitution. Many other provisions of our Constitution likewise direct the legislature to write laws in other contexts. Unless it is expressly stated otherwise, the legislature in carrying out that constitutional direction must write those laws in harmony with every other section of our Constitution.
Article VIII, § 3, was amended to its present language in 1944 to provide for a nonpartisan judiciary, but there is nothing in that language which would support it doing so in a manner in exception to the separation of powers. Article VII, § 10, is an example of an exception under the separation of powers which is “expressly directed or permitted.” Unlike Article VIII, § 3, its language specifically and expressly states that the Governor shall “nominate and with the advice and consent of the senate appoint” officers whose appointment or election has not been otherwise provided for. The function of nomination is given to the Governor exclusively and the function of appointment is given to him in connection with its shared exercise through the advice and consent of the senate. This is truly an example of an exception to the separation of powers.
Nor does Article VIII, § 3, provide any basis for concluding that the legislature could select the judges. The court in State ex inf. Hadley v. Washburn, 167 Mo. 680, 67 S.W. 592 (1902), interpreted a constitutional provision which directed an appointment not otherwise provided for to be made in “such manner as may be prescribed by law” as not permitting the legislature to actually make the appointment. There, at 67 S.W. 595, the court stated:
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, but it does not authorize the general assembly to make the appointment itself, nor to 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; the one is in its nature legislative, the other essentially executive. [Emphasis supplied.]
Having the power to write the law is not tantamount to having the power to execute the law after it has been enacted. As pre*681viously stated, our Constitution confers the power upon the legislature to write laws in many contexts. Article XV, § 2, for instance, directs the legislature to “provide by law for the organization, equipment and discipline of the militia ...” No one would argue that the power to write the law on that subject gives the legislature the power to itself actually organize, equip and discipline the militia. The only power of the legislature in such examples is the power to enact the laws on that particular subject.
Since our Constitution is silent on the nature of the power of appointment of judges and this question has not confronted us before, we are left to our own interpretation of the nature of the power and the extent of infringement, if any, upon it. The crucial issue of this case, however, is not simply who the power of appointment belongs to — the legislature or the Governor. The issue is what effect there is upon the three-department structure of government because of the involvement in the power of appointment by the nominating commission and the senate. An understanding of the separation of powers doctrine is essential to this issues’ resolution.
SEPARATION OF POWERS
As the majority opinion observed, “. . . ever since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, it has been recognized that one department of government cannot control the judgment or official acts of another department ...” Mulcahy v. Public Service Commission, 101 Utah 245, 117 P.2d 298 (1941). In State v. Shumaker, 200 Ind. 716, 721, 164 N.E. 408, 409, 63 A.L.R. 218, 221 (1928), the court spoke similarly:
The true interpretation of this [separation of powers] is that any one department of government may not be controlled or even embarrassed by another department ...
Justice Sutherland quoted Mr. Justice Story in O’Donohue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933), “when he said that in reference to each other neither of the departments ‘ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.’ ”
The purpose behind the separation of powers is to preserve the independence of each of the branches of government so that no one branch becomes a depository for a concentration of governmental powers. Speaking of the purpose of the separation of powers doctrine in Black v. Burch, 226 Ind. 445, 459, 80 N.E.2d 294, 300 (1948), the court stated:
Its object is basic and vital, namely to preclude a commingling of these essentially different powers of government in the same hands.
Were this case one where the particular power is inconsequential to the functioning of any of the branches but rests in one only because of tradition, then there would be no effect of imbalancing the government by either the legislative or executive branch exercising the power. But this is a different circumstance. The appointment of judges is not inconsequential. It is essential, not to the Governor or the legislature, but to a viable judiciary. Therefore a control, a direct or indirect influence of either of the other branches over the judiciary through the power of appointment, by itself or in conjunction with other powers, is coercive and undermines the independent functioning of the judiciary.
Frank E. Holman explained the danger in 1 Utah Law Rev. 21, 25 (1949):
Without ... a truly independent court, all the citizen’s basic rights and freedoms would be mere high-sounding paper declarations of things to be hoped for, but always dependent upon the will of a particular President or Governor, or the particular legislative majority for the time being in power.
Suggested in the context of the need to restrain concentration of power in the judiciary, but also applicable to the need to preserve judicial independence, the court in Searle v. Yensen, 118 Neb. 835, 841, 226 N.W. 464, 466, 69 A.L.R. 257, 261 (1929), stated:
*682It [separation of powers] represents, probably, the most important principle of government declaring and guaranteeing the liberties of the people, and has been so considered, at least, since the famous declaration of Montesquieu that “there can be no liberty ... if the power of judging be not separated from the legislative and executive powers ...”
The irony of the separation of powers is that only by sharing powers to some extent is the independence of each of the branches preserved. In another context, quoting Bovier’s Dictionary in Tite v. State Tax Comm., 89 Utah 404 at 410, 57 P.2d 734, 737 (1951), this Court said, “There are many cases in which the duties of one department are to a certain extent devolved upon and shared by the other.” At times the sharing of powers by two branches is a limitation upon the concentration of powers in either of them or in the third branch. Such a sharing does not violate but strengthens the separation of powers doctrine.
In the case of the power of appointment, the sharing of the power by the legislature and executive branches prevents exclusive control or influence by one or the other of the branches over the judiciary. The judiciary does not possess the power so that it may become too independent and tyrannical; and, neither other department exclusively controls the power so that it can coerce the judiciary. Only in this context of separation of powers does the significance of the power of appointment come to light.
THE POWER OF APPOINTMENT
Since the constitutional silence on the nature of the power of appointment necessarily leaves this Court to its own interpretation of the nature of the power, we are not obliged, constitutionally or otherwise, to follow one line of authority over any other.
In an article on “The Governor’s Constitutional Powers of Appointment and Removal”, 2 Minn.L.Rev. 451 (March, 1938), J. M. Dawley discussed a split of authority which exists on the nature of the power of appointment and stated “There is no substantial agreement among the courts as to its classification.” He recognized one line of authority when he wrote: “There are, of course, many courts which have held that the power of appointment is not inherently executive ...” Id. at 452, 57 P.2d 734. Such courts believe that the power of appointment is an implied residual power in the legislature which rests there on a theory of popular sovereignty. That is the position of the dissenting opinion in the present case. As J. M. Dawley pointed out, “The result [of such a theory] is that the legislature can either confer the appointing power whenever it desires, or it can exercise that power itself.” Id. at 453, 57 P.2d 734.
I believe that such a view ignores the significance of the separation of powers and delegates to the legislature an unhealthy and offensive control over the judiciary. This is so because under such a theory there is no effective limitation on the power of the legislature over the judiciary. It should be noted that the examples of legislative appointment of judges cited in the dissenting opinion, viz. Rhode Island, South Carolina and Virginia are all founded on an express provision of their state constitution which, of course, supersedes their separation of powers provision.
Perhaps because most states, unlike Utah, specifically and explicitly give the power of appointment of judges to their governors in their constitutions, the courts have not specifically held that governors have inherent powers to appoint judges. Still, many courts have recognized an inherent general power of appointment in the executive. The language of these cases does not appear to exempt the specific power of appointing judges from the general power of appointment. Hadley v. Washburn, supra, held the appointment of election commissioners to be an executive function based upon a separation of powers provision and the absence of an express constitutional classification of the power of appointment. Young v. Brill, 100 Minn. 499, 111 N.W. 294, 639 (1907), prohibited the legislature from requiring judges to appoint members of a board of control unrelated to the judiciary on a separation of powers theory grounded in the *683presumption that the power of appointment generally is inherently executive. In Application of O’Sullivan, 117 Mont. 295, 301, 158 P.2d 306, 309, 161 A.L.R. 487, 491 (1945), the court stated, “Generally speaking, the power of appointment is an executive function [citation omitted] which cannot be delegated to the judiciary.” The court in In re Opinion of the Justices, 302 Mass. 605, 620, 19 N.E.2d 807, 817 (1939), declared, “The power to appoint and the power to remove officers are in their nature executive powers. [Citation omitted].” Yancey v. Hyde, 121 Ind. 20,22 N.E. 644 (1889), held that the legislature could not give itself or another branch the power of appointment since appointment of officers is an executive function. In Daly v. Hemphill, 411 Pa. 263, 274, 191 A.2d 835, 842 (1963), the court, using the separation of powers doctrine as a basis, concluded, “[T]he power of appointment is intrinsically and historically an executive function.” The court in In re Advisory Opinion to the Governor, Fla., 276 So.2d 25, 29 (1973), went further and asserted, “The appointment of a judge is an executive function and the screening of applicants which results in the nomination of those qualified is also an executive function.” See also 63 Am.Jur.2d, Public Officers and Employees, §§ 89, 90 (1972); Municipality of St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.Virgin Islands 1948); Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941); Taylor v. Commonwealth, 26 Ky. 401, (3 JJ Marsh.) (1830); Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Myers v. United States, 272 U.S. 56, 47 S.Ct. 21, 71 L.Ed. 160 (1926); Tolerton v. Gordon, 236 Mo. 142, 139 S.W. 403 (1911).
J. M. Dawley in Minn.Law Rev., supra, also acknowledged this line of authority which finds that the power of appointment is executive. He explained:
... some courts hold that the appointing power is executive by nature ... where the courts have held the power of appointment to be inherently executive, there is no doubt about the legislature’s inability to give itself the power. Id. 89 Utah at 452, 57 P.2d 734.
If forced to choose one of these two lines of authority over the other, I would favor the line which holds the power of appointment to be an inherently executive function. Under the Utah Constitution the Governor does not have the power to remove judges. The combination of exclusive appointment with removal therefore would not be his; and the danger of a concentration of power would not be as great as if he had both appointment and removal in his hands. However, since this is a case of first impression in our state, without precedent on point from elsewhere, this Court is not obliged to follow either or any particular authority in our interpretation. In Minn.Law Rev., supra, for instance, the author identified various viewpoints. Therefore, as the majority opinion of this Court has expressed, simply whose power the power of appointment is or from where it is derived is not crucial; the limitation of the power and the resulting balance of the government are important.
As the majority notices, the power of appointment typically has been shared in practicé. The United States Constitution explicitly splits the power of appointment of judges between the President and the Senate; he chooses an appointee and the Senate accepts or rejects the choice. Also, the development of judicial nominating commissions in many states has made the power of appointment of judges a shared one. State ex rel. Johnson v. Meyers, 74 N.D. 678, 19 N.W.2d 745 (1945) held the power of appointment to be an “intrinsically but not exclusively executive function.” There the court found a statute constitutional which allowed the Governor to share the power of appointment with a Commissioner of Insurance stating “An apportionment of that power between two executive officers cannot change the nature of the power. It remains intrinsically executive.”
Even though it is more than an apportionment of power between two executive officers, the sharing of power of appointment of judges is not offensive to the separation of powers doctrine. Rather, it is a *684protection against concentration of powers. The power to appoint judges involves a separate branch of government, the judiciary, and is not a power which is exclusively necessary to either the legislature’s function of writing the laws or the Governor’s function of enforcing the laws. In Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970), where we held that a statute permitting the legislature to appoint six members to the State Board of Higher Education was a violation of separation of powers, the power of appointment was necessary to the executive function. The power was exclusive to the executive; and, the control of the function was, but should not have been, taken from one branch and placed in another. Consequently, this Court held such a usurpation to be unconstitutional.
This case is dissimilar to Rampton, supra, in that the violation is not the taking over by the legislature of an exclusive power of the Governor. The violation is more subtle. It is the taking over of the power of appointment of judges by the legislature to the effective exclusion of the Governor. It is a violation of separation of powers because the control the legislature possesses through its power of appointment upon the judiciary is without effective limitation by anyone. The result is a threat to the independence of the judiciary. The constitutional limitations such as merit and nonpartisan requirements are of little comfort without an effective check upon the legislature.
The dissent suggests that these requirements prevent potential abuse and that any arbitrary overstepping of powers by the legislature is always subject to review by the courts. The difference between us is that I do not measure the constitutionality by the harm that will be sufféred when an abuse occurs. At that point the separation of powers doctrine has failed in its purpose — to protect the people from abusive and tyrannical government. Instead, I measure the constitutionality (or lack of it in this case) by the imbalance created among the departments because of excessive control and potential for abuse by one department over another. At the same time, the argument that reviewability of abuse by the courts forestalls potential abuse seems circular where the potential abuse is control of the judiciary.
This case is similar to Rampton, supra, in that both cases recognize that the key element in determining a violation of separation of powers is control. Neither the creation of the nominating commission nor the composition of the commission as it presently exists gives the legislature an influence or control over the judiciary that offends the Constitution. The commission narrows the Governor’s option of appointees from a broad field to only a choice of two or three. Because the Governor is left with the final choice, however, the imposition of the nominating commission merely operates as a check before the choice rather than as a veto afterward, in order to limit the Governor’s control over the judiciary.
However, the addition of the veto in the form of the senate’s “advice and consent” severely curtails his participation in the process. As the trial court correctly observed, the Governor’s limited choice from a field of three can lawfully be vetoed by the Senate until the one of the three which is its preference becomes the appointee. The appointment then becomes the Senate’s. Contrary to the statement made in footnote nine in the dissenting opinion, there is no “clear inference” that the Governor is entitled to make his second nomination from a new list of three nominees. There is no statutory authorization for the nominating commission which has completed its work to again meet and produce a new list. It is not our function to legislate and gratuitously devise a way for reconvening the commission. See Article VII, § 8, of the Montana Constitution and Mont.Rev.Codes Ann., § 3-1-1013, where the procedure of reconvening the commission is both constitutionally and statutorily provided for. See also, Stanton v. Stanton, 30 Utah 2d 315, 517 P.2d 1010 (1974), where we held that courts should defer to the legislature to make laws and confine ourselves to interpreting them.
*685This legislative control is even more offensive when it is considered that the legislature was granted in our Constitution in Article VIII, § 11, the power to remove judges from office, in Article VI, § 19, the power of impeachment, and in Article VIII, § 2, the power to determine the number of judges. The extent of judicial review of its acts, if any, is extremely limited.
Not only is the legislature’s potential control constitutionally offensive, but an appointment by the Senate offends Article VIII, § 3, which, as I have heretofore observed in this opinion, gives the legislature only the power to write the law providing for the selection of judges, not the power to itself select them.
In summary, the legislature exercises control in that it 1) imposes the nominating commission, 2) participates on the nominating commission, 3) dictates the constitution of the commission membership, 4) restricts the Governor’s choice of an appointee to one from a field of three, and 5) gives the Governor no opportunity to reject all nominees. Further, the legislature also exercises control through its powers of 6) removal for cause, 7) impeachment, and 8) determination of the number of judges. In this context the addition of the confirmation power in the appointment process is an excessive sharing which constitutes legislative control that violates the separation of powers.
Therefore, like the majority, it is with a recognition of the presumption that laws are not to be stricken if they can reasonably be upheld that I must find the “advice and consent” statute unconstitutional. Because of my respect for the legislature I join my brethren with some reluctance. However, the preservation of the separation of powers and the independence of the judiciary compel me to do so.
Except as otherwise provided in this act, justices of the Supreme Court, judges of the district courts, and judges of the circuit court shall be selected, and a vacancy in any such office be filled, by appointment by the governor with the advice and consent of the senate of one of three persons nominated in the manner provided in this act by the appropriate judicial nominating commission for the office to be filled, but persons so appointed shall be subject to election by the voters at the time and in the manner provided in this act.