dissenting: The critical issue in this case concerns the extent to which the legislative branch of government may limit the powers of the executive branch to accept and utilize federal grants. Part 2, article 41 of the New Hampshire Constitution provides that “[t]he executive power of the state is vested in the governor. The governor shall be responsible for the faithful execution of the laws.” This includes the duty to enforce legislative mandates, powers and rights. The legislature, on the other hand, has the “supreme legislative power.” N.H. Const. pt. 2, art. 2. “It has the power to make laws; to name all civil officers [with certain exceptions] and to define their duties and powers . . . .” Opinion of the Justices, 118 N.H. 7, 14, 381 A.2d 1204, 1208 (1978); citing O’Neil v. Thomson, 114 N.H. 155, 160, 316 A.2d 168, 171 (1974); Brouillard v. Governor and Council, 114 N.H. 541, 547, 323 A.2d 901, 905 (1974).
The three branches of government cannot be completely separate, however, and ■ there must be some overlapping as a matter of practical and essential expediency. Opinion of the *341Justices, 118 N.H. 582, 585, 392 A.2d 125, 129 (1978); Opinion of the Justices, 110 N.H. 359, 363, 266 A.2d 823, 825-26 (1970). The “policy-making legislature [for example] possesses some administrative power and . . . the administrative Governor may possess some subordinate legislative power, all within circumscribed limits.” Opinion of the Justices, 118 N.H. at 585, 392 A.2d at 128. A “twilight zone” of uncertain power distribution exists in which both the governor and the legislature can concurrently operate. Id. at 588, 392 A.2d at 130. There is “a region of authority, therefore, alternative and concurrent, the boundaries of which are fixed by no final rule.” Opinion of the Justices, 87 N.H. 492, 493, 179 A. 344, 345 (1935). It is not surprising that with such an unclear and undefined jurisdictional overlap, the doctrine of separation of powers has at times received conflicting interpretations by the United States Supreme Court, even from the same judges. See Edward E. Corwin, The Constitution And What It Means Today, Revised by Harold W. Chase and Craig R. Ducat, p. 2 (1978).
While there are certain areas of legislative power that can be exercised only by the legislative branch of State government, there is also an area of executive power that can be exercised only by the executive branch of State government. A legislative act, for example, will be struck down if it encroaches upon the constitutional prerogatives of another branch of government under part 1, article 37 of the New Hampshire Constitution, which requires the three governmental branches to be as independent of each other as “the nature of a free government will admit.” Opinion of the Justices, 118 N.H. 7, 14, 381 A.2d 1204, 1208 (1978), quoting Merrill v. Sherburne, 1 N.H. 199 (1818); see Opinion of the Justices, 117 N.H. 398, 374 A.2d 638 (1977) (legislative proposal to alter method of judicial appointment found to be unconstitutional infringement on executive power). As applied to the executive, the primary purpose of part 1, article 37 of the New Hampshire Constitution is to protect it from legislative encroachment. Opinion of the Justices, 118 N.H. at 585, 392 A.2d at 129.
While no precise analytical lines demarcate these powers, and while both the legislative and executive branches may enter the domain of the other to some extent, the constitution does establish certain irreducible residua of power that may not be invaded. See generally Morison & H. Commager, The Growth Of The American Public (1942). Such is the constitutional question at issue.
*342The United States Supreme Court has held that the power of appointment is so distinctly an executive power that it cannot be delegated by a general assembly to a board made up of its own members. Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928). Mr. Justice Sutherland, speaking for the Court in Springer, noted:
It may be stated then, as a general rule inherent in the American Constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the legislature cannot exercise either executive or judicial power; the executive cannot exercise either legislative or judicial power. . . . The existence in the various constitutions of occasional provisions expressly giving to one of the departments powers which by their nature otherwise would fall within the general scope of the authority of another department emphasizes, rather than casts doubt upon, the generally inviolate character of this basic rule.
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. The latter are executive functions ....
Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection....
Id. at 201-02; see People v. Tremaine, 252 N.Y. 27, 168 N.E. 817 (1929).
Requiring legislative fiscal committee approval before the governor may establish new federally funded positions within his office in effect transfers executive decision-making and appointment power to the legislature. If the particular legislators desire to approve the program, accept the money, and approve the personnel, it is a fait accompli. If they reject it, the federal grant is disapproved. The legislature, through its appropriations power, may place restrictions on the time and manner that state funds may be expended. This may, necessarily and constitutionally in some cases, limit the governor’s appointment power. In the instant *343case, however, the legislature cannot restrict the governor’s power to accept federal funds.
In Opinion of the Justices, 118 N.H. 7, 15, 381 A.2d 1204, 1209 (1978), this court expressed fear that the legislature would have little or no role to play in overseeing federal funds and that the executive would be seeking and administering federal aid programs free of any checks and balances and free of any political accountability should the governor be allowed to control the distribution of federal grants. This view does not consider, however, that such federal programs are relatively short in duration and less short in total funding. Moreover, the legislature may eliminate or modify such programs as it deems prudent when state or matching funds are required. It is also significant that while the executive is effectively precluded from applying for and administering new federal funds, the University of New Hampshire or the legislature itself may exercise their power to apply for and administer similar federal funds.
The majority in the instant case places weight on the plaintiffs’ argument that the grant may extend beyond the governor’s term of office. This grant, however, may be terminated at the expiration of the executive’s term or, in any event, by a new executive who could refuse to continue its existence. Once State money is needed to continue the grant, a legislative appropriation would be required. The legislature, thus, would have the opportunity to deny the continuation of the grant through its appropriation power.
I dissent from the majority position, and, accordingly, I would hold that the provisions of the Laws of 1979, 434:22 are an unconstitutional encroachment on the powers granted to the governor under part 2, article 41 of the New Hampshire Constitution, and constitute a violation of the principle of the separation of powers.