(dissenting).
I am in dissent. The reason for my dissent will be as tprsely stated as I know how to write. The Governor of this state upon the expiration of the terms of appointment of the plaintiffs to the Board of Regents, except for their holdover rights, appointed each of the defendants to the Board of Regents for a term of six years, such term to be effective January 1, 1971 and to continue until January 1, 1977 or until their successors were appointed and qualified, subject to the confirmation of the state Senate. All of the appointive procedures provided for by the laws of this state and the Constitution were explicitly followed without any deviation. Each of the defendants took the oath of office required by statute which oaths were properly filed as required by law. The appointments were confirmed by the Senate, also an act provided for by law. After the appointments and the filing of the oaths and before the confirmation the Governor attempted by a letter addressed to the Secretary of State to withdraw the appointments which act is nowhere authorized by any law, statute or constitution of this state. When the Governor exercised his power of appointment and the defendants by filing their oaths accepted the appointments, the appointive act was complete, and as provided by law they took their offices. The only authority that could terminate their right to these offices was the Senate. They •saw fit to confirm the appointments.
State ex rel. Kriebs v. Halladay, 52 S.D. 497, 219 N.W. 125, cited in the majority opinion, is not authority for the position taken *83by the majority opinion. Even the very quote as shown in the opinion admits that the appointment of Halladay remained in force until it was acted on by the Senate. The Halladay case does not hold the appointment could be revoked, once made, and after the oath had been properly taken and filed. Halladay's appointment was confirmed by the Senate and the appointment became complete.
I quote introductory comments to the annotations found in 89 A.L.R. 135, as follows:
"At first sight, it would seem entirely reasonable and in accord with public policy to allow the appointive power the privilege of reconsideration. From the point of view of the one appointed to the office, however, to permit such reconsideration, after ihe power of appointment has been completely and finally exercised in the manner prescribed by law and the title to the office has become fixed, is to take from him a vested right. Also, from the point of view of stability and certainty in the administration of public .affairs, it is desirable that there should be some point of time at which an appointment to office becomes finally and irrevocably fixed. As said in the famous case of Marbury v. Madison (1803) 1 Cranch (U.S.) 137, 2 L.Ed. 60: 'Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised.'
Although there are circumstances under which an appointment to office may be reconsidered and revoked, it may be stated as a general rule that an appointment once made is irrevocable and not subject to reconsideration. This view represents the great weight of authority."
1 and 2 from the Syllabus of Barrett v. Duff fully supported by the text, 1923, 114 Kan. 220, 217 P. 918, states:
*84"1. * * * The executive power of the Governor is a continuing power, never ending, and not broken by succession.
2. * * * Where the appointment to an office is vested in the Governor, with the advice and consent of the Senate, and the term of the incumbent expires during a recess of the Legislature, and the Governor appoints a successor to the office, held, that the appointment vests in the appointee a right to hold for his full term, subject only to be defeated by nonconcurrence or rejection of the Senate."
In State ex rel. Todd v. Essling, 1964, 268 Minn. 151, 128 N.W.2d 307, at page 311, it is stated,
"It appears well settled since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, that with respect to an office having a fixed term where the appointee is not removable at will, when the executive power of appointment has been completely exercised, the authority of the executive to remove or rescind the appointment ceases. This rule is founded upon the principle that where the appointing authority has done everything he is required to do to make a valid and complete appointment, he has fully exercised and exhausted his power over the appointee and a recall of the appointment would operate as a removal from office in violation of the appointee's right to continue in office subject only to a rejection by the senate or removal for cause."
Other authority can be given for the position I take but inasmuch as this is only a dissent and the law will become fixed and determined as stated by the majority, I refrain from further comment.
There is another statement in the majority opinion on which I must comment briefly. The majority opinion, after quoting SDCL 13-49-5 and 13-49-3, states: "It would have been an *85idle act for the Governor to have called on the Senate to confirm the appointments or nominations of plaintiffs as it had confirmed others for the offices involved." The opinion, however, holds this confirmation was not valid because the Governor had exercised what the opinion holds was his right of withdrawal of the appointments of the defendants prior to the act of confirmation. It seems to me under the majority holding the Governor had a right to submit to the Senate for confirmation such appointments as he desired and withdraw them and resubmit all before the act of confirmation. Under my theory which holds the Senate had the right to confirm, as the Governor had no right to withdraw the appointments once made, it would have been an idle act for him to submit appointments. Furthermore, under the majority opinion herein the Governor could have created a vacancy any time he wished, as is plainly shown by the stipulation of facts before this Court to the following effect:
"That in the event Burke and Witt were called to testify before a referee, they would testify that on or about January 11, 1971, at the request of Governor Kneip, they conferred with the Governor in his office at the State Capitol, that they were advised by the Governor that he was withdrawing the appointments of Schmidt and Varilek, and he wanted Burke and Witt to continue to serve as Regents, that he could not assure them how' long he wished them to serve but he wished them to serve for at least one year until the Master Plan, then under consideration by the Board, had been determined, and that in accord with his practice with department heads that they leave letters of resignation, annexed hereto as Exhibits S and T, with the Governor, they so did."
I would hold that the defendants, Schmidt and Varilek, are the duly appointed, qualified, confirmed and legally acting members of the Board of Regents from January 2, 1971, the date they qualified.