CASES IN THE SUPREME COURT OF ARKANSAS. COX v. STATE. [72 Ark. 94, 78 S. W. 756.] PUBLIC OFFICERS, Power to Appoint is not Necessarily Executive. The general power to appoint officers is not inherent in the executive, nor in any other branch of the government. (p. 18.) PUBLIC OFFICERS, Power in the Legislature to Appoint.— The legislature has power to make appointments to office, unless its powers are restricted by the constitution expressly or by implication. (p. 18.) PUBLIC OFFICERS, Power to Appoint, When not Conferred on the Governor by the Constitution.—Provisions in the constitution of a state declaring that when any office becomes vacant, and no mode is provided by the constitution for filling the vacancy, the governor shall have the power to fill the same by granting a commission which shall expire when the person elected to fill the office at the next general election shall qualify, and that the governor shall, in case a vacancy occurs in any state, district, county, or township office, either by death, resignation, or otherwise, fill the same by appointment to be in force until the next general election, relate solely to elective offices, the incumbents of which are selected at regular intervals, and do not authorize the governor to appoint officers created by laws which provide for their selection by the legislature. (p. 20.) CONSTITUTIONAL LAW-Public Officers, Appointment or Selection of, by the Legislature.-A statute providing for state capitol commissioners, and that they shall be elected by the two Houses of the legislature is not unconstitutional, on the ground that the constitution does not permit of the appointment or selection of public officers by the legislature. (p. 21.) Quo warranto by the attorney general against the commissioners of the state capitol appointed by the governor. Judgment against the defendant commissioners, from which they appealed. Am. St. Rep., Vol. 105-2 (17) Charles Jacobson, for the appellants. George W. Murphy, attorney general, John M. Rose and Charles T. Coleman, for the appellee. 97 RIDDICK, J. This is an action brought by the attorney general against Thomas Cox and four other defendants, who were appointed by the governor to serve as members of the board of state capitol commissioners created by act of the last legislature. The act in question provided that the members should be elected by the two Houses of the legislature in joint session: Acts 1903, p. 249. In pursuance of this provision of the act, commissioners were duly elected by the legislature. But the governor, acting on the theory that the legislature had no power to make such selection, and that the power to appoint the members of the board was vested in him, appointed the five defendants to serve in that capacity, and this action was brought to test the validity of the appointments made by the governor. All parties wish to have the matter determined, and no objection is made to the form of the action or to the proceeding adopted, and we will proceed to consider the questions presented. First, as to the power of the legislature to make appointments to office: In the United States the general power to appoint officers is not inherent in the executive or in any other branch of the government. It is a prerogative of the people, to be exercised by them or that department of the state to which it has been confided by the constitution. The legislature has, we think, power to make appointments to office unless its powers in that respect are restricted by the constitution, either expressly 98 or by implication: Hovey v. State, 119 Ind. 386, 21 N. E. 890; People v. Hurlbut, 24 Mich. 64, 9 Am. Rep. 103; State v. George, 22 Or. 142, 29 Am. St. Rep. 586, 29 Pac. 356, 16 L. R. A. 737; People v. Freeman, 80 Cal. 233, 13 Am. St. Rep. 122, 22 Pac. 173, and extended and full discussion found in note; Cooley's Constitutional Limitations, 6th ed., 104-133; 23 Am. & Eng. Ency. of Law, 2d ed., 340. Now, an examination of our constitution will show that it not only contains no general or express prohibition against the exercise of the appointing power by the legislature, but it affirmatively shows that it was the intention of the framers of the constitution to permit the legislature to exercise such power to a limited extent. This is shown by the provision to the effect that if in an election for governor, Secretary of State, treasurer, auditor or attorney general, two or more candidates for either of said offices shall receive an equal number of votes, then one of those persons receiving the highest votes "shall be chosen by the joint vote of both Houses of the General Assembly": Const. 1874, art. 6, sec. 3. It is shown also by the section which declares that "whenever an officer, civil or military, shall be appointed by the joint or concurrent vote of both Houses, or by the separate vote of either House of the General Assembly, the vote shall be taken viva voce, and entered on the journals": Const. 1874, art. 5, sec. 14. The contention that this section refers only to the officers of the General Assembly, such as clerks, pages and others necessary to discharge of the duties of that body, does not seem to be borne out by the language used. Why should it speak of the appointment of officers, "civil or military," if that was the meaning? We do not recall any military officer attached to the legislature, or to either of its branches, and we think that the language used is too broad to justify the construction contended for. It is, of course, not usual to have vacancies in office filled by appointment made by the General Assembly, and under our constitution there are many offices which could not be filled in that way. But, though not the usual method, the language of the constitution above quoted shows that the framers of that instrument intended that it might be done in some cases not otherwise provided for, and this is not the only instance in which such power has been exercised by the legislature. It is well known that the last legislature made provision for digesting the statutes of the 90 state, and appointed both a digester and an examiner to do the work required. The act by which these appointments were made by the legislature was approved by the governor, who thus inferentially approved the contention that the legislature has in some cases power to make appointments, and that a statute which attempts to confer this power is not necessarily unconstitutional and void on that account: Acts 1903, p. 414. We are, then, of the opinion from the language of the constitution itself that the legislature may to some extent, in cases not otherwise provided for, exercise the appointing power. It is also plain, we think, that the governor has no inherent power, by virtue of his position as chief executive of the state, to make these appointments. If he has such power, it must be because the constitution has conferred it upon him, and thus, inferentially at least, forbidden the legislature to make them. |