(dissenting). The inquiry, of course, is whether the Law Enforcement Council was intended to be an executive agency or a legislative commission.
Some of the duties assigned to the Council by the act creating it might well come within the province of a legislative commission, especially its responsibility to recommend to the Legislature the enactment of legislation in the field of law enforcement. But those duties and obligations do not end there. The Council is required to examine into and appraise the administration, enforcement and operation of all law enforcement agencies in the State, to initiate and conduct investigations of law enforcement agencies, “from time to time [to] conduct State-wide law enforcement conferences *38for the purpose of accomplishing greater co-ordination and uniformity of law enforcement procedures and of recommending improvements thereof,” and to “consult and advise with the Attorney-General, and from time to time submit to him such recommendations as it may deem advisable, with respect to the conduct of its work and the administration and operation of law enforcement within the State.” N. J. S. A. 52:17B-43.5.
Where, as here, the customary rule of determination becomes a futile endeavor because the agency functions both executively and legislatively, we must search for the legislative intent elsewhere.
The court below and the majority here acknowledge that the intent of the original framers of the Law Enforcement Council legislation was to create an executive or administrative body and not a legislative commission. The act establishing the Council specifically assigned it to the Department of Law and Public Safety and further provided its members were to be appointed by the Governor. These two factors in the legislative scheme clearly evince an intent to make the Council a component of the executive branch of government.
In 1953 when the Legislature removed the Council from the Department of Law and Public Safety and endowed it with the status of a temporary commission, there was no manifestation by this action alone indicative of any purpose to alter the earlier design of the Council. In fact, the opposite inference may rightfully be drawn, for the motive may have been to avoid the constitutional necessity of allocating the Council to one of the principal departments of the State Government in accordance with Article V, Section IY, paragraph 1, of the Constitution of 1947.
Furthermore, as part of the very same series of amendments to the original Law Enforcement Council legislation, the Legislature retained the Governor’s power to appoint the members of the Council, providing only that the members be appointed for a fixed term rather than at the Governor’s pleasure. This again clearly is an announced recog*39nition by the Legislature of the Council’s status as an executive or administrative agency. If it were otherwise, the Legislature would have exercised its constitutional power to appoint members of its own choice.
The amendment of the Law Enforcement Council Act made by chapter 68 of the Laws of 1955, whereby the Legislature sought to extend the terms of the incumbent members of the Council, did not in fact purport to disturb or change the prior status of the Council itself. The Legislature, rather, indirectly sought thereby to arrogate unto itself the power to make appointments within the executive branch of government, which it is expressly forbidden to do by Article IY, Section Y, paragraph 5, of the Constitution.
Eor these reasons I would reverse the judgment below.
For affirmance — Chief Justice Yanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan — 5.
For reversal — Justice Wacheneeld — 1.