I dissent from paragraph 8 of the syllabus and the corresponding portion of the opinion. Although time presses, I feel a sense of responsibility to set forth my reasons for doing so, since, in my judgment, the question involved is basic and vital to the survival of our form of government and reaches to the heart of our constitutional system. It is simply this: May the legislature, when enacting a law defining the policy of the state, create a board or commission to administer and enforce the law enacted and appoint, by such act, to membership on such board or commission certain of its elected or designated members to perform executive power by exercising the duties prescribed, which are not incidental and have no real relation to legislative power? In my judgment, it may not. The attempt to do so constitutes an usurpation of power placed by the constitution in the executive, and, hence, is illegal and void.
The majority of this court do not share my views and choose to follow State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 692-696, 273 P. 2d 198, the purport of which was that the legislature did not usurp the power of the executive when it enacted the Turnpike Act (G. S. 1955 Supp. 68-2001-68-2029) creating the Authority and appointing two members of the legislature, who were designated officers of its body, to perform administrative duties as members of the Authority. While distinction as to duties and functions of membership may readily be made between the Turnpike Authority and the Finance Council Acts, it is clear to me, however, that both acts purport to impose executive power upon members of the legislature in violation of the constitution of Kansas. In this respect, I view each of the acts with the same perspective. The validity of each is unknown in our constitutional system and has not been previously permitted to exist. The purport of the Turnpike case, supra., and the majority opinion in this case, effect a breach in the wall of separation of executive, legislative and judicial powers of government and permits the power of one department to pour through like an on surging flood to engulf and submerge the power of another department, except for the high pinnacle of the executive office expressly provided in the constitution. *669The importance of maintaining three distinct and separate departments of our Republican form of government has been constantly demonstrated, and, as occasions arose, been enforced by the courts. This is so inherent and fundamental that the citation of authority is unnecessary. That the legislature cannot become an administrative body, or, through its members or committees, perform the work of the executive or the judiciary was established in Springer v. Philippine Islands, 277 U. S. 189, 48 S. Ct. 480, 72 L. ed. 845. There is a time when the powers of government must be kept separate and apart in order that our form of government may be preserved. The doubtful cases make the trouble — the small beginnings and usurpations create the danger. Everyone becomes alarmed at outright usurpation and we need have no fear of such occurrence; rather, what we should be alive to and ever guard against is the imperceptible but gradual increase into the assumption of governmental power by one department, properly belonging to another. Such is this, and the Turnpike case, supra. The principles are firm and clear and it remains merely for the courts to apply them.
The doctrine of stare decisis is founded on public policy (21 C. J. S., Courts, § 187, p. 302) and is not universally applicable to all situations without exception. The doctrine is not so imperative or inflexible as to preclude a departure from the Turnpike case, supra. Where there has been but a single decision and it is manifest that the law has been erroneously decided, the doctrine ought not be applied (Kimball v. Grantsville City, 19 Utah 368, 57 Pac. 1). It does not demand that what is not the law shall become the law. Rather, it induces the court, if it has digressed, to return to well-established principles (1 Kent Comm. 476, 477); particularly so where a decision is in conflict with the provisions of a state constitution (21 C. J. S., Courts, § 193, p. 325).
The Finance Council Act violates the constitution of Kansas in two respects: (I) the distribution of the powers of the state, by the constitution, to the legislative, executive and judicial departments, operates, by implication, as an inhibition against the usurpation by either of those powers which distinctly belong to one of the other departments; and (II), the provisions of Art. 2 § 19 and Art. 15, § 1, imposing upon the legislature the duty to provide for the election or appointment of all officers, not otherwise provided for in the constitution, do not carry with them the power of appoint*670ment to offices created in either the executive or the judicial departments.
I.
It is commonplace and well understood by the overwhelming majority of the people of this state, including the Bench and Bar, that the constitution of Kansas provides for three distinct and separate departments of government, i. e., the legislative, executive, and the judicial. The legislature makes the laws. The executive must execute and administer the laws enacted. The judiciary interprets, explains and applies the laws to controversies concerning rights, wrongs, duties and obligations arising under the law. This principle of government is taught in our public schools and 6th grade pupils study it in Civics and in Kansas History. It is not a new principle — it is as old as the state itself. If anyone has doubt that the framers of the constitution of Kansas had any intention of establishing a different system of government they need but read the Proceedings and Debates of the Wyandotte Convention of 1859 to ascertain that our government is peculiarly and emphatically a government of checks and balances provided through three distinct and separate departments to establish safeguards around the rights and interests of the people (Proceedings and Debates of the Wyandotte Convention of 1859, pp. 128, 129, 130).
The constitution of Kansas distinctly distributes the powers of government to the executive, legislative and judicial. The executive department consists of the governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general and superintendent of public instruction (Art. 1, §1). The supreme executive power is vested in a governor who shall see that the laws are faithfully executed (Art. 1, §3). The legislative power is vested in a house of representatives and senate (Art. 2, § 1). The judicial power is vested in a supreme court, district courts, probate courts, justice of the peace, and such other courts, inferior to the supreme court, as may be established (Art. 3, § 1). However, like that of the constitution of the United States and of the state of Ohio, it is distinguished from other state constitutions in that it does not expressly provide that the three departments of government established shall be distinct and separate from the other. The decisions of this court are uniform and none to the contrary, that the three powers of government are as clearly distinct and separate as though the framers of the constitution had said so in express terms. In Coleman *671v. Newby, 7 Kan. 82, 86, 87, in 1868, seven years after the admission of Kansas into the Union, this court said:
“The great weight of authority seems to be that these three great powers or branches of power of government — the legislative, the judicial, and the executive — are distinct and separate from each other: (cases cited); that they include all the delegated power of the State; (§ 20, Bill of Rights;) and that each is delegated to its appropriate department, and can be exercised by no other department: (See authorities above cited, and Taylor v. Place, 4 R. I., 354; People v. Draper, 15 N. Y., 543; Taylor v. Porter, 4 Hill, 144.)” (Emphasis ours.)
In State v. Johnson, 61 Kan. 803, 812, 813, 60 Pac. 1068, it was said:
“It will be noticed that there is no express provision in the Kansas constitution to the effect that persons charged with the exercise of powers properly belonging to the one shall not exercise any functions pertaining to either of the others. Yet this court, in the case of In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135, has said:
“ “We think, however, that under our constitution these powers are as clearly separated as though the framers of the constitution had said so in terms.’
“Mr. Chief Justice Kingman emphasized this by saying that to confer both executive and judicial powers upon a court is 'as dangerous to good government as it is subversive of the constitution which has carefully kept separate the executive, legislative and judicial departments of the government, to the end that it may be a government of laws and not of men.’ (Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 505.)” (Emphasis ours.)
In The State v. Railway Co., 76 Kan. 467, 474, 92 Pac. 606, it was said:
“Our constitution contemplates the complete separation of the three governmental powers as clearly as though it so declared in express terms. . . .”
(Emphasis ours.)
In Ruland v. City of Augusta, 120 Kan. 42, 49, 50, 242 Pac. 456, former Chief Justice Harvey, in considering the effect of Art. 1, § 1, Art. 2, § 1, and Art. 3, § 1 of our constitution, above referred to, said:
“Commenting on these provisions, in Western Union Tel. Co. v. Myatt, 98 Fed. 335, 347, it was said:
“ ‘That, in a broad sense, the powers of one of these departments shall not be conferred upon either of the others, is not only within the true spirit of these provisions, but also substantially within the letter thereof; and the addition thereto of an express prohibitory declaration, such as is contained in the constitutions of some of the states, that the powers of one department shall not be exercised by another, would add very little to their effect, so far as concerns the question under consideration. The universal doctrine of American liberty under written constitutions requires the distribution of all the powers of government among three departments — legislative, judicial, and executive — and that each, within its appropriate sphere, be supreme, coordinate with, and independent of, both the others. This doctrine was adopted into the constitu*672tion of one state with the declaration that it was “to the end it may be a government of laws, and not of men”.’ ” (Emphasis ours.)
It is unnecessary to quote at length from the many decisions of this court which declare the principle above set forth. Suffice it to say the following decisions are to the same effect: In re Sims, Petitioner, 54 Kan. 1, 6, 11, 37 Pac. 135; In re Davis, 58 Kan. 368, 372, 49 Pac. 160; In re Huron, 58 Kan. 152, 156, 157, 48 Pac. 574; Hicks v. Davis, 97 Kan. 312, 315, 154 Pac. 1030; State, ex rel., v. Robb, 163 Kan. 503, 517, 183 P. 2d 223; State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 78, 283 P. 2d 461; State, ex rel., v. Anderson, 180 Kan. 120, 299 P. 2d 1078.
The separation of the powers of government represents probably the most important principle declaring and guaranteeing the liberties of the people. It is one of the chief merits of the American system of written constitutions, and, in a broad sense, the safety of our institutions depends in no small degree on the strict observance of the independence of the three departments. (11 Am. Jur. Constitutional Law, p. 880, § 182; 16 C. J. S. Constitutional Law, pp. 483, 489, §§104, 105.) The separation of these powers; the independence of one from the other; and, the requirements that one department shall not exercise or usurp the powers of the other two, is fundamental. Each acts, and is intended to act, as a check upon the other, and, thus, a balance system is maintained. No theory of government has been more loudly acclaimed. An excellent discussion of the importance ascribed to this principle is contained in 3 Willoughby on the Constitution, 2d ed. p. 1616, where, under the headnote “Separation of Powers,” the author makes this statement:
“A fundamental principle of American constitutional jurisprudence, accepted alike in the public law of the Federal Government and of the States, is that, so far as the requirements of efficient administration will permit, the exercise of the executive, legislative, and judicial powers are to be vested in separate and independent organs of government. The value of this principle or practice in protecting the governed from arbitrary and oppressive acts on the part of those in political authority, has never been questioned since the time of autocratic royal rule in England. That the doctrine should govern the new constitutional system established in 1789 was not doubted. Washington, in his farewell address, said: ‘The spirit of encroachment tends to consolidate the powers of all governments in one, and thus to create, whatever the form of government, a real despotism.’ Madison, in The Federalist, wrote: ‘The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ John Adams wrote: *673Tt is by balancing one of these three powers against the other two that the efforts in human nature toward tyranny can alone be checked and restrained and any degree of freedom preserved;’ and Hamilton asserted: ‘I agree that there is no liberty if the powers of judging be not separated from the legislative and executive powers.’ Webster stated the same doctrine when he said: ‘The separation of the departments [of government] so far as practicable, and the preservation of clear lines between them is the fundamental idea in the creation of all of our constitutions, and doubtless the continuance of regulated liberty depends on maintaining these boundaries.’ ”
The constitution of Kansas was adopted in the light of this principle of government and this court has construed it accordingly.
In Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377, paragraph 6 of the syllabus reads:
“The Constitution divides the powers of the government which it establishes into the three departments — the executive, the legislative, and the judicial — and unlimited power is conferred on no department or officer of the government. It is essential to the successful working of the system that the lines which separate those departments shall be clearly defined and closely followed, and that neither of them shall be permitted to encroach upon the powers exclusively confided to the others.”
In Myers v. United States, 272 U. S. 52, 47 S. Ct. 21, 71 L. ed. 160, Mr. Chief Justice Taft, when referring to the debate made by James Madison in the House of Representatives in adopting the judiciary act at the First Congress, quoted Mr. Madison as follows:
“ ‘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. If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with great caution, it is that which relates to officers and offices.’ 1 Annals of Congress, 581.”
And in the opinion it was said:
“Their union under the Confederation had not worked well, as the members of the convention knew. Montesquieu’s view that the maintenance of independence as between the legislative, the executive and the judicial branches was a security for the people had their full approval. Madison in the Convention, 2 Farrand, Records of the Federal Convention, 56. Kendall v. United States, 12 Peters 524, 610. Accordingly, the Constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish, the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497. This rule of construction has been confirmed by this Court in Meriwether v. Garrett, 102 *674U. S. 472, 515; Kilbourn v. Thompson, 103 U. S. 168, 190; Mugler v. Kansas, 123 U. S. 623, 662.” (Emphasis ours.)
In Springer v. Philippine Islands, 277 U. S. 189, 48 S. Ct. 480, 72 L. ed. 845, Mr. Justice Sutherland said:
“Thus the Organic Act, following the rule established by the American constitutions, both state and federal, divides the government into three separate departments — the legislative, executive and judicial. Some of our state constitutions expressly provide in one form or another that the legislative, executive and judicial powers of the government shall be forever separate and distinct from each other. Other constitutions, including that of the United States, do not contain such an express provision. But is is implicit in all, as a conclusion logically following from the separation of the several departments. See Kilbourn v. Thompson, 103 U. S. 168, 190-191. And this separation and the consequent exclusive character of the powers conferred upon each of the three departments is basic and vital — not merely a matter of governmental mechanism. . . .
“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 judiciary cannot exercise either executive or legislative 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.” (Emphasis ours.)
In O’Donoghue v. United States (1933), 289 U. S. 516, 53 S. Ct. 740, 77 L. ed. 1356, Mr. Justice Sutherland, speaking for the court in words which cannot be surpassed, said:
“The Constitution, in distributing the powers of government, creates three distinct and separate departments — the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital . . . namely, to preclude a commingling of these essentially different powers of government in the same hands. . . .
“If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others — independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments. James Wilson, of one the framers of the Constitution and a justice of this court, in one of his law lectures said that the independence of each department required that its proceedings ‘should be free from the remotest influence, direct or indirect, of either of the other two powers’ Andrews, The *675Works of James Wilson (1896), Vol. 1, p. 367. And the importance of such independence was similarly recognized by Mr. Justice Story 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.’ 1 Story on the Constitution, 4th ed., § 530. . . (Emphasis ours.)
To a great extent the constitution of the state of Ohio was a model for the constitution of Kansas (Markham v. Cornell, 136 Kan. 884, 18 P. 2d 158). Like the constitution of Kansas, 'the Ohio constitution did not expressly provide that the powers of government shall be distinct and separate. In construing the Ohio constitution, the supreme court of Ohio, in Zanesville v. Telegraph and Telephone Co., 64 Ohio St., 67, 59 N. E. 781, 52 L. R. A. 150, held:
“The distribution of the powers of the state, by the constitution, to the legislative, executive, and judicial departments, operates, by. implication, as an inhibition against the imposition upon either, of those powers which distinctively belong to one of the other departments.” (Syl. 1.)
From the authorities above set forth the reasonable construction of the constitution is: not only are the three departments distinct and separate, but that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of the other except with respect to the exercise of those powers which are expressly blended; and, the constitution should be expounded to blend them no more than it affirmatively requires. The rule may thus be stated:' The distribution of the powers of the state, by the constitution, to the three departments, operates, by implication, as an inhibition against the exercise or usurpation by either of those powers which distinctively belong to one of the other departments, unless, the power sought to be exercised is expressly blended in the departments by the constitution, and no more than it affirmatively requires.
There are several expressly blended executive and legislative powers in the constitution of Kansas, some of which are:
1. Art. 1, § 3, vests supreme executive power in a governor; Art. 2, § 1, vests legislative power in a house and senate; by Art. 2, § 14, the legislature and the governor exercise coordinate functions in enacting laws, and the governor is an essential part of the legislation (State, ex rel., v. Ryan, 123 Kan. 767, 771, 256 Pac. 811); the governor may sign a bill, he may veto it, or a bill may become a law without his signature, or the legislature may override the governor’s veto by two-thirds vote of the members elected to each house.
*6762. Art. 7, § 1, provides that the trustees of benevolent institutions shall be appointed by the governor by and with the advice and consent of the senate.
3. Art. 1, § 7, vests in the governor the power of pardon. (This power, by some authorities, is conceded to be judicial.)
4. Pursuant to Art. 2, § 1. and Art. 6, § 1, the legislature and the state superintendent of public instruction may coordinately exercise legislative power in altering the boundaries of school districts (State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1051).
5. Art. 1, § 2, provides that in case of a tie in the election of the members of the executive department, the legislature shall, by joint ballot, choose one of the nominees.
6. Pursuant to Art. 1, § 6, the governor may, in case of a disagreement between the two houses with respect to time of adjournment, adjourn the legislature to a future date.
7. Ry Art. 1, § 5, the governor may convene the legislature into special session.
8. Art. 1, § 11, provides that in cáse of death, impeachment, resignation, removal or other disability of the governor, the powers and duties of the office shall devolve upon tire president of the senate; by Art. 1, § 12, the lieutenant governor shall be the president of the senate and shall vote only when the senate is equally divided; it further provides that the senate shall choose a president pro tempore to preside in the absence or impeachment of the lieutenant governor or when he shall hold the office of governor; by Art. 1, § 1, the lieutenant governor is a member of the executive department of the state, but the lieutenant governor is not entitled'to vote on a bill or joint resolution where the senate is equally divided (Coleman v. Miller, 146 Kan. 390, 71 P. 2d 518).
9. By Art. 1, § 13, if the lieutenant governor, while holding the office of the governor, shall be impeached or otherwise becomes incapable of performing the duties of the office, the president of the senate shall act as governor until the vacancy is filled or the disability removed; if the president of the senate shall be rendered incapable of performing the duties of the office of governor, the same shall devolve upon the speaker of the house of representatives.
It is evident from the foregoing that the only member of the legislature who is authorized by the constitution to exercise executive power is either the president of the senate or the speaker *677of the house of representatives who becomes the governor upon the occurrence of conditions set forth in Art. 1, §§ 11, 12 and 13.
Of the six members comprising the state finance council (G. S. 1955 Supp. 75-3708), four are legislative members.consisting of the president pro tem of the senate, the speaker of the house of representatives, and the chairman of the committees on ways and means of the house of representatives and the senate. The only executive power the president of the senate or the speaker of the house of representatives may exercise is that, set forth in Art. 1, §§ 11, 12 and 13. No provision, express or implied, is made in the constitution for the chairman of the ways and means committees of the house of representatives and the senate to exercise executive power. Consequently, under the rule above set forth, it is an inescapable conclusion that the appointment of the four legislative members to the state finance council is illegal and void, if such members exercise executive power in administering the provisions of G. S. 1955 Supp. 75-3708 to 75-3714. (Stockman v. Leddy, 55 Colo. 24, 129 Pac. 220; Springer v. Philippine Islands, supra.; Simpson v. Hill, 128 Okla. 269, 263 Pac. 635; The State, ex rel. Jameson et al., v. Denny, 118 Ind. 382, 21 N. E. 252; State, ex rel. Black v. Burch, 226 Ind. 445, 80 N. E. 2d 294; 11 Am. Jur., Constitutional Law, § 187, p. 886; 16 C. J. S., Constitutional Law, § 130, p. 545.)
Does the state Finance Council Act impose executive power upon the members of that council? I think it does. I shall neither explore nor delimit the frontiers of executive and legislative power, but state only my views upon the question presented by this record. The majority opinion holds that the duties imposed upon the members of the finance council are administrative in character. In this I agree. It is clear these duties are not legislative. If they were, the act would violate the constitution as a delegation of legislative power to make appropriations; It is still more clear they are not judicial. The fact they do not fall within the authority of either of these two, constitutes logical ground for concluding that they do fall within the remaining one, i. e., the executive. But, it is unnecessary to reach this conclusion by deduction.
An examination of the Finance Council Act clearly demonstrates that the members of the finance council do not allocate or authorize the expenditure of the emergency fund as members of the legislature. Their duties have no real relation to the legislative power. The finance council is a part of the department of administration. *678By creating the department of administration, the legislature, among other things, prescribed fiscal procedures for the budgeting, accounting, disbursing and auditing of funds appropriated to the executive department, to execute, administer and enforce statutory laws and to provide the services those laws define. In the classification of powers, the department of administration is executive and was created to assist the governor in the faithful execution of the law. Duties assigned to this department are neither legislative, nor judicial. The executive director of this department is appointed by and holds the office at the pleasure of the governor (G. S. 1955 Supp. 75-3703), and is secretary of the finance council. In carrying out the duties imposed, the finance council exercises functions similar to those of many other state boards or commissions. It executes the law by ascertaining the events and conditions upon which the law shall operate. This is an administrative duty and is a function of the executive department. Standards are provided in- the statute which govern its action. The events or conditions prescribed may, or may not, occur. It may only act when the events or conditions prescribed exist. When they exist, the finance council allocates and authorizes the expenditure of funds to meet those conditions. The distinction between what the finance council does in executing the law, and what the legislature does in enacting the law, bears no semblance. The former simply ascertains the events and conditions upon which existing law operates, while the latter predetermines what the law shall be for the regulation of all future cases falling within its provisions. The former is executive, the latter is legislative. That, is the distinction.
The majority opinion states that the power to appropriate public money of the state is a legislative power. In this I am in full accord. This power is distinctly distributed to the legislative department by Art. 2 of the constitution. The legislature has the exclusive power to decide how, when and for what purpose the public funds shall be applied to execute the laws. When appropriations are made to the executive or judicial departments the legislature has no further control over the funds appropriated — its power is terminated. In People v. Tremaine, 252 N. Y. 27, 168 N. E. 817, Justice Pound said:
“. . . The legislative power appropriates money and, except as to legislative and judicial appropriations, the administrative or executive power spends the money appropriated. Members of the legislature may not be appointed to spend the money. . . .”
*679Legislative power, as distinct from executive power, is the authority to make laws but not to enforce them. The latter are executive functions. The legislature may not do indirectly what it cannot do directly. It cannot create executive offices and appoint its members to such offices. In 11 Am. Jur., Constitutional Law, § 187, p. 886, the rule is stated:
“It is a fundamental principle of the American governmental system that the legislature cannot usurp the powers of the executive department by exercising functions of the latter. Thus, a state legislature may not confer purely executive power on a committee of its own members. . . .”
The rule is also stated in 16 C. J. S. Constitutional Law, § 130, pp. 545, 547, as follows:
“As a-general rule, under constitutional principles with respect to the division of powers, legislative power as distinguished from executive power is the authority to make laws, but not to enforce them.”
“Ordinarily, members of the legislature may not hold appointment in the administrative department of government without violating the constitutional provisions that no person charged with official duties under one of the three separate departments of government shall exercise any of the functions of another. . . . Where under the constitution the legislative power appropriates funds and, except as to legislative and judicial appropriations, the administrative or executive power expends the money so appropriated, members of the legislature cannot be appointed to expend moneys so appropriated. . . .”
In Springer v. Philippine Islands, supra, it was held:
“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."
(Syl. 5.) (Emphasis ours.)
In the opinion it was stated that it was unnecessary to enlarge further upon the general subject, since it had so recently received the full consideration of the court in Myers v. United States, 272 U. S. 52, 47 S. Ct. 21, 71 L. ed. 160. And, further, that the legislature was without capacity to perform executive duties, directly or through its members. Also, see, Stockman v. Leddy, supra, where it was said:
“. . . In other words, the general assembly not only passed an act— that is, made a law — but it made a joint committee of the senate and the house as its executive agent to carry out that law. This is a clear and conspicuous instance of an attempt by the general assembly to confer executive power upon a collection of its own members. . . .” (1. c. 31.)
*680The amended petition alleges unconstitutionality of the state Finance Council Act (G. S. 1955 Supp. 75-3708 — 75-3714) for the reason it violates the separation of powers distributed by the constitution, between the legislative and the executive departments. These allegations necessitate a review of the Department of Administration Act (G. S. 1955 Supp. 75-3701 — 75-3904) to ascertain the character of duties imposed upon the finance council.
That the designation of the four legislative members by G. S. 1955 Supp. 75-3708 to the finance council constitutes the making of an appointment to office by the legislature, cannot be seriously disputed. The positions were created and filled by the legislature; the incumbents possess governmental powers requiring the exercise of judgment and discretion; the, powers and duties of the positions are defined hy the legislature; the positions are not temporary, they have permanency and continuity — for the term each member was elected to the legislature; their power is not exhausted by a single act, but is a continuing general supervisory power over a large sum of money in the emergency fund and over many policy-making functions relating to the administration of fiscal, personnel and budgetary laws; compensation and necessary expenses incurred while attending meetings are provided; and, all members are-subject to the call of the chairman (the governor) at any time upon notice given in advance of all meetings. These appointments are to a station of public trust not merely transient, occasional or incidental. The powers imposed are continuing although the occasion for discharging them may be irregular and fitful. Unless the oath of a member of the legislature is sufficient, the appointees should take the constitutional oath of office (Art. 2, §7). If all this does not amount to an appointment to an office it is hard to say what more is required.
I will not search all statutes conferring power upon the finance council, but a list would include the following from G. S. 1955 Supp.:- •
1. Hear and determine appeals by any state agency from final decisions or final actions of the executive director (75-3711 [2]);
2. “With the approval of the finance council” the executive director shall establish rules and regulations with respect to the manner of performance of any powers or duties of the department, the execution of any business of the department, and its relations to and business with other state agencies (75-3706);
*6813. “When approved by the state finance council” the personnel director shall classify all officers, employments and positions in the classified service with respect to title, specifications of duties and qualifications, including minimum qualifications, salary or wage rates and ranges for each class, grade or group of positions in the classification, which, upon approval, shall take effect immediately, and such approval shall be sent to the budget director to be used by him in the preparation of the next following and subsequent state budgets (75-2938);
4. “Subject to the approval of the state finance council” the controller shall adopt rules and regulations under the supervision of the executive director with respect to the administration of the old-age and survivors insurance for public employees (75-3749);
5. In the event of disagreement between the state architect and the administrative head of any state agency relating to plans, specifications and contracts for the construction, major repairs or improvements of public buildings authorized by the legislature for the use of such state agency, the executive director shall submit the matter “to the finance council and its decision shall be final” (75-3714);
6. To advise in the preparation of state budgets and may appoint a member or members to be present during the preparation of budget hearings, who shall receive a per diem and expenses while in attendance of such hearings (75-3711, 75-3718a);
7. State agencies may apply to the budget director to transfer a part of items appropriated to it, to other items of its appropriation. “If the finance council approves the request” the application shall be granted (75-3726);
8. “With the approval of the finance council” the controller may establish an accounting system for the settlement of transactions by state agencies on the basis of adequate expenditure vouchers approved by the controller in lieu of warrants (75-3733 [2]);
9. “With the approval of the finance council” the director of purchases may adopt rules and regulations relating to the administration of a purchasing division to purchase supplies, materials, equipment or contractual services for all state agencies (75-3738);
10. The executive director shall submit “to the finance council for its approval, modification or rejection” rules and regulations prepared by the personnel director for carrying out the Civil Service Act (75-3747);
*68211. The department of administration shall develop plans for improvements and economies in organization and operation of the several state agencies and install such plans as are approved by the respective heads of such agencies, or as directed by law or by the governor “with the approval of the finance council” (75-3707 [11]);
12. The department of administration shall, at the direction of the governor “upon approval of the finance council” provide central or consolidated services relating to stores, mail and messenger, telephones, motor pool, microfilming, duplicating, furniture exchange, building management and accounting machines (75-3707 [13]); and
13. In case of vacancies, to fill them pursuant to 75-3709.
These duties patently show that the executive power of supervision, administration and enforcement — in short, the execution of the law — is imposed upon the finance council, and, when performed by the legislative members, are not incidental to then- legislative power in gathering information to present to the legislature for its consideration and action, rather, their primary purpose directs the exercise of judgment and discretion in executing the laws enacted by the legislature. Clearly, the authority of die governor to faithfully execute the laws enacted by the legislature is subordinated to the “approval of the finance council.” The legislative may cooperate, investigate, study, research, recommend and enact, but it may not execute. That is the duty of the executive department. The inescapable result is, the legislature has attempted to confer executive power upon a “council,” the majority of which is composed of its own members, and to impose upon such members duties which they were not elected to assume and which they cannot constitutionally exercise. (Myers v. United States, supra; Springer v. Philippine Islands, supra; Zanesville v. Telephone and Telegraph Co., supra; State, ex rel., v. Burch, supra; Stockman v. Leddy, supra; Simpson v. Hill, supra.)
Like a minority stockholder with one vote at a meeting of the board of directors of a large financial institution — seen but not heard — the governor of this state, who stands as the head of the executive department as this court stands as the head of the judicial and as the legislature stands as the head of the legislative (Householder v. Morrill, 55 Kan. 317, 40 Pac. 664; The State, ex rel., v. Dawson, 86 Kan. 180, 119 Pac. 360), and who stands charged by *683the constitution with the faithful execution of all laws (Art. 1, § 3), may, while in attendance of meetings of the finance council, have his policies of administration and execution thwarted, not by the supreme court or by the legislature — his co-ordinate equals in government — but, by the four legislative members of the council, who may, if a majority of them disagree with his policies of executing the laws enacted, override those policies by a majority vote and inaugurate their own. This is veto without portfolio. This is usurpation of the executive. This is unconstitutional action.
The most eminent constitutional authorities: the decisions of the supreme court of the United States and of this court; leaders at tire convention which wrote the federal constitution: Washington, Hamilton, White and Madison; and, the writers of government: Locke, Montesquieu, Rlackstone, Jefferson, Adams, Storey, Webster, Taft and Sutherland, all agree that the powers of government must be kept separate; that the acts of each shall never be controlled by or subjected directly, or indirectly, to the coercive influences of either of the other departments, and that the powers of the departments may not be blended except as affirmatively appears in the constitution. What the legislature here did was to appoint its members to a “council” and impose upon them executive power. This is an attenqot to blend the powers of the legislative and executive for a purpose not affirmatively authorized by the constitution, and, hence, G. S. 1955 Supp. 75-3708 is void and unconstitutional. In my judgment, this court has failed in its responsibility to so declare.
II.
One question remains. Do Art. 2, § 19 and Art. 15, § 1, imposing upon the legislature the duties to provide for the election or appointment of all officers, not otherwise provided for in the constitution, carry with them the power of appointment by the legislature to offices created in either the executive or judicial departments? In my judgment, they do not.
These sections, so far as here pertinent, read:
“. . . It shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution.” (Art. 2, § 19.)
“All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.” (Art. 15, § 1.)
Sound reasons exist to say that when these sections are considered together they authorize the legislature to “provide for” the *684election or appointment of all officers not otherwise provided for in the constitution, “as may be prescribed by law.” This seems to be clearly indicated in the language of Art. 2, § 19. However, the language of Art. 15, § 1, is not so clear but its fair import is the same or similar to the other section. It provides in substance that all officers whose election or appointment is not otherwise “provided for,” shall be chosen or appointed as may be prescribed by law. These sections, when read together, authorize the legislature to “provide for" all officers to be elected or appointed to positions created, to execute or interpret the laws enacted. The power to provide by law the manner or mode of making an appointment does not include the power to make the appointment itself. In The State, ex rel. Attorney General, v. Kennon et al., 7 Ohio St. 546, the court held:
“Directing by law the manner in which an appointment shall be made, and making an appointment, are the exercise of two different and distinct powers: the one prescribing how an act shall be done, being legislative; and the other, doing the act, being administrative.” (Syl. 2.)
In a concurring opinion Justice Swan used the following language:
“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, tire other administrative.” (1. c. 570.)
In The State, ex rel. Jameson et al., v. Denny, Mayor, 118 Ind. 382, 21 N. E. 252, it was said:
“We think it plain that the power to provide by law the manner or mode of making an appointment does not include the power to make the appointment itself. . . .
“In the light of the contemporaneous history of the Constitution, we do not think it will be seriously contended' that the framers of that instrument intended to confer upon, or leave with, the General Assembly any such power. ... As the right to prescribe by law the manner of appointing to a new office created by the Legislature does not carry with it the right to make such appointment, we know of no provision in the Constitution under which such right can reasonably be asserted. It is believed that this conclusion accords with the practical construction heretofore placed upon our Constitution.” (1. c. 393.)
*685See, also, The City of Evansville et al. v. The State, ex rel. Blend et al., 118 Ind. 426, 21 N. E. 267, holding to the same effect.
Furthermore, the power to appoint to office is not an intrinsic or inherent legislative power except insofar as it is an incidental power, essential to the existence of the legislative branch as an independent department of the government (The State, ex rel. Jameson et al., v. Denny, Mayor, supra; The City of Evansville et al. v. The State, ex rel. Blend et al., supra.)
It is not sufficient to say that the legislature may appoint to the executive or judicial unless restricted by the constitution (State, ex rel., v. Kansas Turnpike Authority, supra). In my judgment, that is not the rule (Stockman v. Leddy, supra; Springer v. Philippine Islands, supra; Simpson v. Hill, supra; State, ex rel., v. Denny, supra; State, ex rel., v. Burch, supra; 11 Am. Jur., Constitutional Law, §187, p. 886; 16 C. J. S. Constitutional Law, §130, p. 545). The rule is: the distribution of the powers of the state, by the constitution, to the three departments, operates, by implication, as an inhibition against the exercise or usurpation by either of those powers which distinctively belong to one of the other departments, unless the power sought to be exercised is expressly blended in the departments by the constitution, and it should be expounded to blend them no more than affirmatively requires.
Unless the power sought to be exercised by the legislature is affirmatively blended by the constitution it lacks power to blend it by statute. Neither of the sections of the constitution here under consideration expressly authorize the appointment of legislative members — the blending of power — to the executive or judicial departments, hence, the power to do so does not exist (Stockman v. Leddy, supra; Springer v. Philippine Islands, supra; Simpson v. Hill, supra; State, ex rel., v. Denny, supra; State, ex rel., v. Burch, supra; 11 Am. Jur., Constitutional Law, § 187, p. 886; 16 C. J. S. Constitutional Law, § 130, p. 545.) Neither the executive nor the judicial would be wholly free and independent from the control, directly or indirectly, of the influence of appointees of the legislative to offices created in those departments. It needs but a suggestion to show that the combination of the executive and legislative powers may become tyranny at once (In re Sims, Petitioner, supra). The advancement of the science of government made in modern times is due to the separation of the three co-ordinate departments. The commingling and confusing of executive and legislative powers in *686the manner here attempted is incompatible with the constitution, obnoxious to its purpose and spirit, and to the spirit of free institutions. It violates a fundamental principle of American constitutional jurisprudence and permits many powers of the executive and legislative departments to be combined and reposed in one — the legislative.
To approach the question from a different viewpoint achieves the same result. All legislative power is vested in the legislature except as restricted by the constitution. Prescribing the rules, manner and requisites of appointment or election is a legislative power (The State v. Railway Co., supra; The State v. Freeman, 61 Kan. 90, 58 Pac. 959; The State v. Atkin, 64 Kan. 174, 67 Pac. 519). Where there are no express constitutional restrictions to do an act, implied inhibitions restrict and are equally potent but their existence must be equally evident. To sustain an implied inhibition there must be some express affirmative provision. This court has previously considered implied inhibition upon the legislative power. Justice Brewer prepared the opinion in Prouty v. Stover, Lieut. Governor, 11 Kan. 235, where it was held:
“Constitutional inhibitions need not always be express. They are equally effective when they arise by implication. To create an implied inhibition there must be some express affirmative provision. The mere silence of the constitution creates no prohibition. To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than necessary to give full force to the provision.” (Syl. 3.)
In Bank v. Laughlin, 111 Kan. 520, 207 Pac. 433, Mr. Justice Bruch, in a concurring opinion, said:
“. . . There must be some provision of the constitution itself which abridges legislative power. Abridgment may be express, or may be implied. One form is as potent as the other, but abridgement by implication must be as plain as express abridgement, and in order that this may be so, the implication must arise from an express provision. . . .” (1. c. 525.)
The express affirmative provisions of the constitution distributing the power of the state to three distinct and separate departments: the executive (Art. 1), the legislative (Art. 2), and the judicial (Art. 3), operates as an implied inhibition against the exercise or usurpation of either of those powers which distinctively belong to one of the other departments, unless the power sought to be exercised by the departments is expressly blended in the constitution (Prouty v. Stover, Lieut. Governor, supra; In re Holcomb, Petitioner, 21 Kan. 628; Bank v. Laughlin, supra; Lemons v. Noller, 144 *687Kan. 813, 63 P. 2d 177; Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207).
In State, ex rel., v. Robb, 163 Kan. 502, 183 P. 2d 223, it was said:
“The judiciary is merely one of the three branches of the state government. It should be slow to approve any action which even has the semblance of permitting one branch to act toward another in a manner contrary to the terms and provisions of the constitution.” (1. c. 517.)
No one questions the established principles that the propriety, wisdom and expediency of legislation are exclusive matters for legislative determination (Hunt v. Eddy, 150 Kan. 1, 90 P. 2d 747, and cases therein cited), or that our constitution limits rather than confers powers (State, ex rel., v. Anderson, 180 Kan. 120, 299 P. 2d 1078; State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 283 P. 2d 461), but, the constitutional restraint upon the legislative to appoint its members to offices essentially executive or judicial in character is implied from the inherent, express and insuperable barrier found in the structure of the constitution. That the appointment of members of the legislature to positions essentially executive or judicial constitutes the exercise of power of either of those departments, cannot be seriously disputed. Without the constitution there would be no state government; no legislative, no executive, and no judicial departments. All departments are subject, and operate pursuant, to its command; their power comes from the people and vests where the people’s constitution directs that it shall vest. It is not created by the legislature, nor vested by that body.
This construction of the constitution does not prohibit the legislature from engaging in activities which may properly be regarded as incidental and germane to its legislative powers. The legislature may, and has, established its own agencies. It has created its legislative council and appointed officers from its own membership (G. S. 1949, 46-301-46-315) to collect information concerning the welfare of tire state; to deal with issues of public policy and study questions of state-wide interest; to study the possibilities for consolidations of state agencies to eliminate unnecessary activities and duplications in personnel and equipment; to co-ordinate departmental activities to increase efficiency and effect economies; to study reforms for local governments; to devise means of enforcing the law; to call upon all state and local agencies to make such studies as it may require; and, it has established its own research department to assist it. It created the judicial council (G. S. 1949, 20-2201) to survey and *688study the judicial department; to devise methods of procedure to speed up litigation of the citizens of the state; to receive and consider suggestions concerning faults in the administration of justice, and, to recommend methods of simplifying civil and criminal procedure. It has the power to establish investigating committees to investigate the conduct of officers and employees of the state government (G. S. 1949, 46-108). It has its committees on claims and accounts (G. S. 1949, 46-111-46-116) to hear and consider claims against the state when the legislature is in session, and its members may be selected as a temporary committee to investigate charges of misconduct in charitable, educational or penal institutions when the legislature is notin session (G. S. 1949, 76-201-76-203). These, and other agencies, have to do with the gathering of 'information, of investigation, study, research and the making of recommendations to' the legislature for its consideration and enactment. They have nothing to do with the execution of the law, and possess no characteristics or similarities to the the duties imposed upon the finance council.
In writing this dissent I cast no reflection whatsoever upon the legislative members of the finance council, who, beyond all doubt, are men of honor and integrity, and who have exercised the duties imposed upon them with care, with wisdom, and with sincere desire for the public welfare. No one suggests a selfish purpose. However, we are dealing with an important and far-reaching constitutional question concerning a power of government which does not permit honesty, integrity, good intentions, a progressive enthusiasm, or even successful operation to take the place of essential constitutional action.
I would enter judgment for the plaintiff. In my opinion G. S. 1955 Supp, 75-3708 is unconstitutional and void. It attempts to appoint legislative members to a “council” composed of a majority of its own members, to exercise executive power in a manner not authorized by the constitution. As this controversy indicates, the legislative' purposes would be thwarted by permitting the power of allocation to remain in the governor and the lieutenant governor alone, and, in my judgment, the fund balance of the state emergency fund should be returned to the general revenue fund of the state until such time as it is appropriated to a constitutional officer or council for the use and purposes and within the limitations of G. S. 1955 Supp, 75-3713.
*689I am authorized to say that Mr. Justice Wertz concurs in this dissent.