(concurring and dissenting):
I concur in the judgment that Senate confirmation of gubernatorial appointees to the offices of Justice of the Supreme Court and judges of the district and circuit courts is unconstitutional under the present method of selecting judges. Because I reach that conclusion on somewhat different grounds from those essayed by Judge Bullock and Justice Howe, I shall set forth the reasons for my conclusion. I think the conclusion unavoidable that senatorial confirmation of those judges named above, as provided in U.C.A., 1953, § 20-1-7.1,1 § 20-l-7.6(4),2 when those judges must also stand an election subject to contest, is in violation of Article VIII, § 3 and Article V, as amplified by Article VII, § 10 of the Utah Constitution which specifies when the Senate may confirm appointees. I agree that senatorial confirmation of juvenile court judges, who do not stand election, is constitutional. In brief, senatorial confirmation under the Utah Constitution is part of the appointment power, and under the constitutional provisions may be exercised only as prescribed by the Constitution. Specifically, senatorial confirmation is not permissible when an appointee for office— whether judicial, executive or legislative— must stand an election subject to contest to remain in office.
*686I also dissent from the holding that judicial selection committees are constitutional. In my view the issue is moot and nonjusticiable.
I.
In 1944 the people of Utah voted to amend the Constitution to dispense with the dubious practice which had existed from Statehood of selecting judges by partisan elections. Prior thereto and for a time after that, judges ran for election on a partisan ticket, as Republicans or Democrats, and generally were voted into and out of office as their political parties succeeded or failed. Merit selection, as an official, specifically designed policy to enlist the most competent candidates, was a stranger to the process. Partisan elections were not designed to promote judicial competence, impartiality, and dedication to the rule of law without regard to outside pressures. The amendment became effective in 1945. The 1945 amendment provided that the method for selecting judges was to be determined by the Legislature. As amended, Article VIII, § 3 now provides:
Judges of the Supreme Court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however that selection shall be based solely upon consideration of fitness for office without regard to any partisan political considerations and free from influence of any person whomsoever, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law. [Emphasis added.]
The initial issue to be addressed is the meaning of the term “in such manner as shall be provided by law ...” That term was clearly intended to give the Legislature some latitude in devising the manner in which judges should be selected. For example, judges could be selected by gubernatorial appointment, some type of election, or perhaps in some other way. In this case, however, we are concerned only with determining whether the term, “as shall be provided by law ...,” authorized the Legislature to require Senate confirmation.
II.
The inherent and preeminent function of the legislative branch of government is to enact laws of general applicability, to provide normative standards of conduct for society and to provide for the organization and operation of the government. As the United States Supreme Court stated in Springer v. Philippine Islands, 277 U.S. 189, 190, 48 S.Ct. 480, 72 L.Ed. 845 (1928): “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.” (Quoted with approval in Rampton v. Barlow, 23 Utah 2d 383, 388, 464 P.2d 378, 381 (1970).) Although the Legislature under our constitutional scheme possesses all lawmaking power not denied it by the Utah or the United States Constitutions, State ex rel. Stain v. Christensen, 84 Utah 185, 35 P.2d 775 (1934); State ex rel. Nichols v. Cherry, 22 Utah 1, 60 P. 1103 (1900), it does not possess all the powers of government. It is only “Legislative power” which has been conferred upon the Legislature by the legislative article of the Constitution, Article VI, § 1, not executive3 or judicial power, with minor exceptions referred to hereafter. In addition, the Constitution confers certain other powers on the Legislature in implementation of the constitutional system of “checks and balances.” Such powers are not legislative powers in their nature, but powers that are either executive or judicial. Generally, they are not exercised in the same manner *687as are legislative powers. The legislative power, the power to make laws, can only be exercised by the joint action of both chambers in the manner prescribed by the Constitution, but not by one chamber acting alone. In re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946).
The Constitution specifically restricts the exercise of legislative power in numerous ways by specific prohibitions. E.g., Article VI, § 26, 27, 28, and 29. That power is also limited by the nature of the power itself. In an early case, the Supreme Court of Ohio, in Attorney General v. Kennon, 7 Ohio St. 546, 560-561 (1857), held that the very nature of legislative power does not encompass the appointive power:
To prescribe the manner of election or appointment to an office is an ordinary legislative function. To make an appointment to office is an administrative function. And under a constitution in which the philosophical theory of a division of the powers of government into legislative, executive, and judicial, should be exactly carried out in detail, the power of prescribing the manner of making appointments to office would fall naturally and properly to the legislative department; while the power to make the appointments themselves would fall as naturally and properly to the executive department. This exact adherence to theory, however, is seldom if ever found in any frame of government; and we refer to the distinction simply by way of reply to the claim, on behalf of defendants, in argument, that the power to prescribe the manner of appointments includes the power of appointment itself, and to show that they are acts and powers wholly different and distinct from each other.
And, in a concurring opinion, Swan, J., stated:
Upon this question, it seems to me only necessary to refer to the plain words of the constitution. It provides, in the first place, that “the election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution or the constitution of the United States, shall be made in such manner as may be directed by law.” Now, providing by law the manner in which an appointment shall be made, and making the appointment itself, are two different things: the first is pointing out the mode in which a thing shall be done, and the other is doing the thing itself; the one is legislative and directory, the other administrative. [Emphasis added.] Id. at 570.
Accord: Municipality of St. Thomas & St. John v. Gordon, 78 F.Supp. 440 (D.C.V.I. 1948); Handley v. Washburn, 167 Mo. 680, 67 S.W. 592 (1902); State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N.W. 951 (1928). The principle laid down in these cases, that the legislative power may define the manner of selection for an office, but may not make the actual appointment, is an essential part of the doctrine of separation of powers. Municipality of St. Thomas & St. John v. Gordon, supra; State ex rel. University of Minnesota v. Chase, supra; Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946); cf. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).4 Moreover, unless the Constitution specifically provides otherwise, the legislative power to determine the manner of selection does not include the power of legislative or senatorial confirmation. The courts have been “unanimous in their holding that confirmation is not a distinct legislative power, but rather a part of the executive power of appointment which has in turn been delegated in some specific instances by constitution to the legislative branch.” Bradner v. Hammond, Alaska, 553 P.2d 1, 7 (1976). Accord: Myers v. United States, 272 U.S. 56, 138-39, 47 S.Ct. 32 (1926); State v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955); Wittier v. *688Baumgartner, 180 Neb. 446, 144 N.W.2d 62, 67 (1966); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946); State v. Dowling, 167 La. 907, 120 So. 593 (1928); People v. Shawver, 30 Wyo. 366, 222 P. 11 (1924). 81A C.J.S. States § 84 (1977).
Therefore, the phrase in Article VIII, § 3, “in such manner as shall be provided by law,” only permits the legislative power to be used to determine the manner of selection and the manner of selection does not include confirmation, unless the Constitution in some other specific provision confers that power.
Despite its breadth, it is clear beyond peradventure that the language in Article VIII, § 3 does not confer on the Legislature plenary power over the appointment of judges. Indeed, if that provision were so construed, it would have to be conceded ^£hat the Legislature could itself appoint judges under virtually any conditions it chose to impose, a practice that could have the most profound and far-reaching effects for constitutional government.5 Such a power would enable the Legislature to assert dominance over the Judiciary and effectively destroy it as an independent branch of government. With a Judiciary *689subservient to the Legislature, the Executive Branch would also eventually experience erosion of its independence, and it would be virtually certain that judicial review — the doctrine which has given critical vitality and efficacy to constitutional government limited by a written constitution — would be destroyed.
Thus, the most basic framework of our constitutional scheme would be subject to revolutionary change by legislative enactment alone. Yet, it has been strenuously argued that Article VIII, § 3 is not restricted by the separation of powers principle and even that the Legislature itself could make judicial appointments. Even the dissent concedes that serious constitutional problems would arise in such a case. If the spectre raised seems extreme, it must, nonetheless, cause one to pause. For, as Mr. Justice Frankfurter stated in his concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 594, 72 S.Ct. 863, 889, 96 L.Ed. 1153 (1952):
The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.
The dissent espouses a theory of separation of powers that would accommodate a substantial intermingling of powers. How much, it is not possible to determine because no effort is made to lay down a standard that distinguishes that which is too much and unconstitutional from that which is not too much and constitutional. Indeed, the principle espoused is so flexible as to admit of no definition. As stated in the dissent: “The principle of separation of powers should therefore be viewed not only in terms of the functional independence of each branch of government, but also in terms of the inevitable and desirable interdependence of each of the three branches, which serves the same purpose.” On that view separation of powers is made to turn on a subjective determination of what is and is not constitutional. That concept does not serve as a principled guide for decision making. Certainly no rationale is advanced which justifies expanding legislative power to include the power of confirmation or even appointment — such as was prohibited in Rampton v. Barlow, supra —but which would stop short intrusion in other powers belonging to the other departments.
III.
In my view the Utah Constitution requires adherence to that view of the doctrine of separation of powers stated by Mr. Justice Brandéis in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84, 71 L.Ed. 160 (1926):
The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
The doctrine of separation of powers was explicitly made a part of the Constitution of Utah, to assure that each department would be independent within its own sphere but without the power to dominate another department. Unlike the Federal Constitution, that principle is not left to be deduced from the general structure of the Constitution. Article V, § 1 of the Utah Constitution states:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted. [Emphasis added.]
The framers of the Constitution considered the principle embodied in Article V, § 1 to be of such importance that they wrote that provision to prevent its erosion by implication, strained constructions, or any means which would have the effect of *690enfeebling that great, overarching principle of constitutional government. Exceptions to the general principle were to be permitted only in cases “expressly directed or permitted” by the Constitution itself, and generally for the purpose of creating checks and balances as between the departments of government.
Several examples are found in the Constitution of express provisions which intermingle some of the great powers of government to temper and restrain the powers of each of the departments. For example, the House and the Senate may exercise judicial power in the form of impeachment proceedings, Article VI, §§ 17, 18; and the Senate may exercise a part of the executive power in participating in the appointive process by consenting or refusing consent to gubernatorial appointments, Article VII, § 10. The Governor is authorized to exercise a legislative power by being invested with the power to veto legislative enactments, Article VII, § 8; to convene extra sessions of the Legislature, Article VII, § 6; and to adjourn the Legislature in case of disagreement between the two houses of the Legislature at any special session, Article VII, § 7. In each case, the exceptions to the doctrine of separation of power are explicitly stated and designed for a particular purpose.
It has been argued that the phrase in Article VIII, § 3, “as provided by law” was intended to permit the Legislature to act without regard for the limitations established by Article V. There is no valid basis in reason or law for such a revolutionary construction. Indeed, the term “as provided by law” is found in numerous places throughout the Constitution, and if that phrase could be interpreted to empower the Legislature to override the separation of powers doctrine with respect to the Judiciary, that doctrine could itself be utterly destroyed, the basic nature of constitutional government completely altered, and the liberties of the people subverted to the extent they depend on separation of powers. For example, the Legislature which has constitutional power to “provide by law” the duties of various state officials, could, if the construction asserted were correct, authorize the Lieutenant Governor or Attorney General to enact laws or the State Auditor or Treasurer to perform judicial functions. See Article VII, §§ 14, 15, 16. It strains credulity past all reason to maintain that the electorate in adopting the present version of Article VIII, § 3 ever intended such a radical, if not revolutionary, destruction of a fundamental precept of government in this State. When the separation of powers doctrine is to be overriden, specific language sufficient to that end was employed in the Constitution in the emergency powers provision. See Article VI, § 30.
It is clear that Article VII, § 3 empowers the Legislature to authorize the Governor to make judicial appointments. That section is the source of the Governor’s power, but it is not the case that the position of this opinion rests on the proposition that the executive “has inherent power to select judges,” notwithstanding Article VIII, § 3. Nevertheless, the power granted the Legislature is confined within its own limitations and the limitations of the doctrine of separation of powers. The dissent rejects “the idea that the power to select judges is an executive power” in the constitutional sense. That may be. However, although the Legislature might conceivably have selected another means, it authorized the Governor to make appointments, just as it has done in myriad other cases. Having done so, it cannot then go beyond what is “authorized by law.”
The key question then is, does the Constitution authorize the Senate to confirm? If not, the Senate may not. To the extent that the Constitution deals generally with the power of appointment, it is dealt with exclusively in the Executive Article, Article VII. Section 9 of that Article vests in the Governor the power to fill a vacancy in any State or district office which becomes vacant when there is no mode provided either by the Constitution or the laws for filling such vacancy. The appointment or commission extends until the next election and qualification of the person elected to such office.
*691Section 10 authorizes one of the most important of the checks and balances, senatorial confirmation, under certain circumstances. It vests in the Governor the power to nominate “all State and district officers whose offices are established by this Constitution, or which may be created by law ...” and in the Senate the power to consent to nominations if the officer is not subject to election or his appointment in some other manner than by the Governor. That section states:
The Governor shall nominate, and by and with consent of the Senate, appoint all State and district officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If, during the recess of the Senate, a vacancy occurs in any State or district office, the Governor shall appoint some qualified person to discharge the duties thereof until the next meeting of the Senate, when the Governor shall nominate some person to fill such office. If the office of Lieutenant Governor, State Auditor, State Treasurer or Attorney General be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, from the same political party of the removed person; and the appointee shall hold office until a successor shall be elected and qualified, as provided by law. [Emphasis added.]
As stated in Part II, the power of confirmation conferred on the Senate by § 10 is not an exercise of legislative power; it is an aspect of the appointive power. Harman v. Harwood, 58 Md. 1 (1881); Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946). Indeed, the Legislature, which is the only body that can exercise legislative power, does not perform the act of consenting or not consenting to a gubernatorial appointment; only one chamber of the Legislature acts, and that is not an act of the Legislature under our Constitution. Accord, Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (9th cir. 1980); In Re Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551 (1939); Walker v. Baker, supra. The power of the Senate to give advice and consent under Article VII, § 10 is a part of the appointment power conferred on the Governor by that provision.6 Harman v. Harwood, supra; Walker v. Baker, supra. Cf., State v. Di Salle, 172 Ohio St. 363, 176 N.E.2d 428 (1961); State v. Kennon, 7 Ohio St. 546 (1858).
The power of selection under § 10 may be exercised directly by the people in the form of an election, if required by the Constitution or statutes, or by appointment by the Governor, with the consent of the Senate, depending upon whether the appointee must stand election, and possibly in other ways.7
*692The purpose of Article VII, § 10 is to provide a check on the appointment power of the Governor in one of two ways: either by senatorial confirmation or by election, if that follows appointment, but not both. A requirement of both confirmation and an election subject to contest would be, at best, a redundancy; and senatorial denial of a Governor’s appointment would deny the people the right to vote on the Governor’s first choice. This construction of Article VII, § 10 is not only required by the explicit language of that provision, but it is also consistent with the proposition that the power of senatorial consent should be narrowly construed. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). The construction is also consistent with the policy underlying the language in § 10 that the Governor shall fill unexpired vacancies in the major elective State offices, i.e., Lieutenant Governor, State Auditor, State Treasurer, and Attorney General without senatorial confirmation. In such cases, the sole restriction upon the power of the Governor in making the appointment is that the appointee must be from the same party as the party of the person who previously held that office.8
That a short period will elapse between the time a judge is appointed and the time he must stand election under the present system is of no consequence. The plain fact is that a judge must stand election. Monson v. Hall, Utah, 584 P.2d 833 (1978). The same is also true of other officials who may be appointed subject to later standing election. Exercising the powers of office for the short interim period does not, call for confirmation.
In sum, the Governor has power to appoint judges pursuant to legislation which expressly confers that power and which was enacted pursuant to Article VIII, § 3. However, because of the intrinsic nature of *693legislative power itself, Article VIII, § 3 does not give the Legislature the power to authorize Senate confirmation of a state official. The authority for Senate confirmation can only be found, if it exists at all, in the Constitution. Such authority does not exist in this case as to Supreme Court justices, district court and circuit court judges, because under § 10 their election is otherwise provided for.9 The dissent and plurality opinion agree that § 10 does not apply — on that there is agreement, although for different reasons. As to juvenile court judges, confirmation is required because they do not stand election.
To contend, as does the dissent, that § 10 is a “backup measure designed to prevent the dilemma of a legally authorized office without a legally prescribed method for filling it,” is to misperceive the highly important nature and purpose of § 10. That construction relegates that section to a constitutional redundancy as a “backup” measure for a situation that is covered by Article VII, § 9. The relationship between the branches of government intended by the framers of the Constitution would be seriously disjointed if that construction of § 10 were to prevail.
The practice in the State follows the pattern laid out in § 10. The Department of Social Services is one example. The chief administrative officer of the department is the executive director who is appointed by the Governor with the advice and consent of the Senate. U.C.A., 1953, § 63-35-5. Various division directors are appointed by a board having direction of the particular division, with the concurrence of the executive director of social services. Section 63-35-6. The members of the various boards are appointed by the Governor with the advice and consent of the Senate. See, for example, Section 63-36-1. Thus, the Governor’s appointments, who hold major positions of responsibility are subject to Senate confirmation.
Where does the Legislature obtain the power to require the Senate confirmation of the executive director? From § 10. He is appointed by the Governor, and he does not stand election. Those of lesser rank and authority, the division directors, are not confirmed because they are not appointed by the Governor. Numerous other examples of the same general procedure are found throughout the statutes relating to a host of governmental departments and agencies.
If Justice Oaks’ interpretation of § 10 were correct, the result would be a wholesale shift of power from the Legislative Branch to the Executive Branch. The immediate consequence of the dissent’s conclusion that § 10 is a minor, “back-up” provision is to shatter the constitutional foundation for senatorial confirmation of the literally hundreds of gubernatorial appointments which now are subject to confirmation, and to destroy a firmly rooted principle of constitutional government in Utah.
IV.
The issue of the constitutionality of the judicial nominating commissions is, in my view, moot, and the opinions of the Court addressing that issue are advisory opinions. Prior to the submission of this appeal, the Governor, plaintiff in this action, made his judicial appointments from the names submitted by various judicial nominating commissions. These commissions were formed in compliance with the statutory provision now being challenged. In such a posture, the Governor is not in a position to challenge the constitutionality of the nominating commissions because there is no controversy. Counsel for the parties both conceded before this Court that the issue is non-justiciable. I agree and think that we
*694should follow well-established rules to the effect that the case which becomes moot on appeal is not justiciable. Duran v. Morris, Utah, 635 P.2d 43 (1981); Baird v. Utah, Utah, 574 P.2d 713 (1978); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Not only is the case moot but both parties in effect withdrew the issue on oral argument. That the issue may recur is of no consequence when neither party seeks to have this Court pronounce an opinion on an issue. The opinions on the nominating commissions are, therefore, gratuitous. As to this issue, the case should be remanded to the district court for an order of dismissal.
. U.C.A., 1953, 20-1-7.1 provides:
. U.C.A., 1953, 20-1-7.6(4) provides:
(4) Subject to the appointee being approved by the senate and being retained in the office by the voters as provided in section 20-1-7.7, the person appointed pursuant to this section shall serve for the unexpired term of his predecessor in office or shall serve for the full term of office provided by law in case the appointment is to fill a vacancy in the office of a justice or judge whose term has expired or is to fill a vacancy created by the establishment of a new judicial office.
. Article VII, § 5 was amended in 1980 to explicitly confer the full executive power of the State on the Governor. That provision now states in pertinent part:
The executive power of the State shall be vested in the Governor, who shall see that the laws are faithfully executed. The Governor shall transact all executive business with the officers of the government, civil and military ...
. To maintain the doctrine of separation of powers, it is necessary, of course, that the Legislature have the power to appoint its own clerks, assistants, and professional staff, see Article VI, § 32. The independence of the Legislature is of no less importance than that of the other two branches of government.
. Although the doctrine of separation of powers has not been rigorously adhered to in some states, its importance as a fundamental principle of constitutional law has been generally recognized, at least as to the three great departments of government at the state and federal levels, with the exception of administrative agencies.
The great French philosopher, Montesquieu, stated what is still recognized as a valid principle:
Again, there is no liberty, if the judiciary power be not separated from the the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined the executive power, the judge might behave with violence and oppression. The Spirit of Laws, p. 70. [Great Books, Vol. 38 (1952) ]
Montesquieu’s writings were familiar to the founders of the United States Constitution. Madison stated:
If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. (1 Annals of Congress, 581.)
As first ratified, the United States Constitution did not have a Bill of Rights because of the belief that in the structure of government itself there was sufficient protection against any form of despotism. The doctrines of separation of powers and delegation of powers were initially deemed sufficient to provide the necessary protection against the age-old tendency of government to eventually assume despotic powers. As Madison wrote in the Federalist, No. 48, p. 197. [Great Books, Vol. 43 (1952)] “It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” For that reason, he stated:
It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. id.
In arguing for the protections afforded individuals by separation of powers, Madison noted the numerous violations of that doctrine among the various states at that time. For example, he criticized the structure of government in Virginia which authorized the Legislature to fill all the principal offices, both executive and judicial. He also observed that the Constitution of North Carolina and South Carolina also provided for the legislative power of appointment of members of the judiciary as well as of executive officers, and in the case of South Carolina, even the power of appointment of officers in the executive department down to captains in the army and the navy.
Madison made clear that he did not wish to be “regarded as an advocate for the particular organisations of the several State governments.” Indeed, he though the constitutions of the first states bore “strong marks of the haste” with which they were created, and still “stronger” marks of the inexperience under which they were framed. In reference to the states, Madison stated:
It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed that maxim by its author, nor by the sense in which it has hitherto been understood in America. Federalist, No. 47, p. 156. Id.
. The Constitution contemplates that the Governor will fill most major non-elective state offices by appointment. Thus, major executive department offices as well as many commission and agency offices are generally appointed by the Governor with the consent of the Senate. But when the Legislature authorizes a manner of appointment other than by the Governor, whether by civil service or by other agencies such as certain boards or commissions, Senate confirmation is not appropriate.
. It was the view of Alexander Hamilton that the appointive power exercised by government was inherently executive in nature except to the extent that the legislative and judicial branches appointed their own employees and agents. In Federalist. No. 76, p. 225-6 [Great Books, Vol. 43 (1952)], Hamilton stated:
Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule that one man of discernment is better fitted to analyse and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify than a body of men who may each be sup*692posed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances will of course be the result either of a victory gained by one party over the other or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
. The contention in the dissent that the Governor would have no power to appoint judges if § 10 is read as I read it, is without merit. Section 10 depends in many, if not most cases, upon statutes conferring appointment power on the Governor and the power of confirmation on the Senate. For the most part, § 10 is not self-executing. Thus, appointments are made by the Governor and confirmed by the Senate pursuant to statutes enacted under the authority of Article VII, §10. The dissent asserts that § 10 is not applicable — as do I — but contends that if Senate confirmation under that section is impermissible then so is gubernatorial appointment. The baffling argument is then made that recognition of the power of the Governor to make judicial appointments is evidence of adherence by this opinion to the proposition that there is an inherent executive power to appoint. The dissent’s argument simply fails to accept the fact that this opinion has consistently stated that the Governor’s power to appoint judges is derived from statutory authority enacted pursuant to Article VIII, § 3 and not pursuant to a self-executing power under Article VII, § 10. Therefore, even if it be assumed that there is no gubernatorial power to appoint under § 10, there is nevertheless power to appoint pursuant to statutory authority enacted pursuant to Article VIII, § 10. The implied concept in the argument of the dissent that there is only one source of appointment power in the Constitution is novel.
. In my view the type of election referred to in Article VII, § 10 is an election subject to contest but not a “retention election” such as employed in some states which is an “election” in the sense that the issue is whether, on the basis of his record, a judge should be retained in office. If that type “election” were the election called for, Senate confirmation would be appropriate because the term “election” as used in Article VII, § 10 was intended to encompass the traditional meaning of the term election and not a “retention election,” as called for by the Missouri plan.