The next question, then, is whether the power to appoint commissioners to serve on a board such as the one created by this act has been conferred upon the governor by the constitution in such a way as to prohibit the legislature from making the appointments. There are only two sections of the constitution quoted by counsel for appellants as conferring this power upon the governor. One of these is as follows: "When any office, from any cause, may become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have the power to fill the same by granting

commission, which shall expire when the person elected to fill said office at the next general election shall be duly qualified": Const. 1874, art. 6, sec. 23. The other section quoted is one of the amendments to the constitution, and is in the following language, to wit: "The governor shall, in case a vacancy occurs in any state, district, county or township office in the state, either by death, resignation or otherwise, fill the same by appointment, to be in force until the next general election." Both of these provisions, by their terms, plainly refer to elective offices-to those state, county, township and other offices the incumbents of which are selected by election at regular intervals. This is shown by the fact that each of those sections limits the term of the appointee of the governor appointed under them to the time when the person elected to the office at the next general election shall qualify and 100 sume the duties of the office, thus making it plain that they refer to elective offices. Neither of these sections, we think, has reference to commissioners such as the members of the state capitol board; a board created for a special purpose, the members of which are not elective, and whose terms and offices will both expire with the completion of the work for which the board was created. If no mode for the selection of this board had been provided, it may be that the governor would have had the power to make the appointments, but we need not concern ourselves with that matter here, for in this case the statute expressly points out the method by which these commissioners shall be selected.

We do not think it necessary to undertake to define very precisely what is meant by the term "public officer," as counsel has invited us to do, for, whether the members of this board can be said to be public officers or not, it is certain that, though the duties devolving upon them are of great importance, the positions they hold are of such a peculiar and limited kind that

they do not come within the provisions in reference to the regular officers of the state found in the constitution. As we see it, there is nothing in the constitution which forbids that the members of such a board shall be selected by the legislature. The method of selecting the members of such boards is a matter to be determined by the legislature, which can leave it to the governor to make the appointments, or can, if deemed safe, make them itself.

We are therefore of the opinion that the legislature had the right to provide for the selection of the state capitol board in the way pointed out by this act, and that the appointment. by the governor of these defendants to serve as members of that board was without any authority in law to support it, and conferred no power whatever upon them to act as such board.

The judgment of the circuit court was, in our opinion, right, and it is therefore affirmed.

The Power of Appointment to Public Office is discussed in the monographic note to People v. Freeman, 13 Am. St. Rep. 125-147. This power does not necessarily belong to either the legislative, executive or judicial departments of the government: Fox v. McDonald, 101 Ala. 51, 46 Am. St. Rep. 98. That it may in some instances be exercised by the legislature, see State v. George, 22 Or. 142, 29 Am. St. Rep. 506; People v. Freeman, 80 Cal. 233, 13 Am. St. Rep. 122. Compare State v. Washburn, 167 Mo. 680, 90 Am. St. Rep. 430, and see the cases cited in the cross-reference note thereto. Consult, also, Board of Supervisors v. Todd, 97 Md. 247, 99 Am. St. Rep. 438.

DEUTSCH v. DUNHAM.

[72 Ark. 141, 78 8. W. 767.]

SALE OF CHATTELS, Right to Inspect.-Where a con tract of sale is executory, the purchaser cannot be compelled to accept the property until he has had an opportunity to inspect it and ascertain whether it is such as is stipulated for. (p. 23.)

SALE OF CHATTELS, Inspection, When Necessary to Com plete. Where a contract is for the sale and purchase of lumber of different specified grades, an inspection is necessary to ascertain what are the grades of lumber which have been manufactured. (p. 24.)

SALES, Title, When does not Pass by.-Under a contract for the sale and purchase of lumber of different grades to be thereafter manufactured, title does not pass to the purchaser in advance of the actual or constructive delivery of the property to him, and where the seller refuses to abide by the purchaser's inspection, the only remedy of the purchaser for the refusal to deliver is by an aetion for damages. (p. 24.)

McCulloch & McCulloch, for the appellant.

H. F. Roleson and N. W. Norton, for the appellees.

142 BATTLE, J. Albert Deutsch commenced an action of replevin against Dunham & Nelson to recover the possession of certain oak and gum lumber described in his complaint. The defendants denied that he was the owner or entitled to the possession of the lumber. The issues were tried by a jury, and a verdict was rendered for the defendants, and the plaintiff appealed.

The oak lumber was claimed by appellant under a written contract between him and appellees, dated March 27, 1899, which is as follows: "This is to witness a contract this day entered into by and between Albert Deutsch, party of the first part, and J. P. Dunham and D. L. Nelson, parties of the second part, in consideration of 143 six hundred dollars in cash paid to them by said A. Deutsch, the receipt of which is evidenced by a note for like amount, secured by a mortgage on the mill bought by said Dunham & Nelson and known as the Nash Mill, and other considerations hereinafter named, do sell to said A. Deutsch all the output and cut of red oak, white oak and ash lumber sawed by their said mill on the Choctaw and Memphis Railroad in St. Francis county, Arkansas, and in case of change of ownership of the mill this contract shall remain binding on the purchaser. The said lumber to be sawed by said Dunham and Nelson according to the orders of said A. Deutsch, to be piled at the siding of the Choctaw and Memphis Railroad in a good and workmanlike manner and properly crossed, using proper foundations and dry piling strips, giving plenty of ventilation and loaded on cars according to the wishes of said A. Deutsch whenever desired by him. Following are the prices agreed on between the parties of the first and second parts, to wit: [Here follows list of prices for different kind and grades of lumber.] The plain white oak and ash to be sawed as much as possible two and one-half inches and over thick as possible without disadvantage, and it shall be optional with party of the second part whether the culls shall be included or not, the lumber to be inspected green and paid for once a month less the usual two per cent for cash."

The prices agreed upon in the written contract were to be paid for sixteen different kinds and grades of lumber. The six hundred dollars were loaned by appellant to appellees to purchase the mill mentioned in the contract, and have been returned to him.

Evidence tending to prove substantially the following facts was adduced: Two men were sent by appellant, at different times, to appellees' mill to examine lumber sawed by them. George Lorraine was first sent to examine gum lumber. The lumber was not piled. He estimated the amount, and refused to include in his estimate certain "culls." Appellees objected, and refused to accept his inspection, and declined to deliver the lumber to appellant. Albert Lorraine was the other man The lumber examined by him was not in piles, but in stocks. He estimated the quality of lumber sawed. He says that there was no way to determine from his estimate the value of the lumber. Appellees objected to his examination of the lumber, and refused to accept it 144 and to deliver the lumber to appellant, but sold it to other persons. The parties failed to agree upon inspection, and no satisfactory inspection was made. Appellant offered to send other inspectors, but all his offers were declined. He agreed that appellees might sell the gum lumber to other persons, and they did so.

His contention is stated in his brief as follows: "That as soon as the lumber was sawed and delivered at the place of delivery stipulated in the contract, and appellant had offered to inspect and pay for same, the sale was complete, and the contract was no longer executory, but executed, and that the title had passed to appellant, so that he could sue for possession." Is this contention correct in this case?

The contract upon which appellant bases his claim to the lumber in controversy was executory. At the time it was entered into, the lumber was not in existence. It was thereafter to be sawed by appellees, according to the orders of appellant, and to be well piled at the siding of the Choctaw and Memphis Railroad in a good and workmanlike manner. The prices to be paid were agreed upon and fixed according to grade of lumber. It was "to be inspected green and paid for once a month, less the usual two per cent for cash."

The contract being executory, it is clear that appellant could not be compelled to accept the lumber until he had an opportunity to inspect it in order to ascertain whether it was such as appellees stipulated to saw: 2 Mechem on Sales, secs. 1210, 1211, 1375, and cases cited. It is equally clear that the inspection was necessary in this case to ascertain the grades of the lumber, in order to determine the amount to be paid according to the stipulated prices. Both parties were interested in, and protected by, the stipulation that an inspection should be

made. Hence it was required, and, on account of the purposes for which it was evidently to be made, became a condition to be performed before the title to the lumber vested in appellant, and a complete sale to him was made. For it is not reasonable to suppose that the appellant intended to bind himself to receive and pay for all the lumber that appellees might manufacture. It was stipulated in the contract that the lumber he agreed to purchase should be sawed according to his orders. And it is not reasonable to presume that appellees intended to deliver the lumber before it was graded according to the prices agreed 145 upon and the amount to be paid therefor should be ascertained and fixed, and thereby subject themselves to the risk of loss, disagreements, and litigation that might follow. There was no delivery of the lumber to appellant, actual or constructive. The transfer of the title to the property depended upon the intention of the parties. There was evidence adduced tending to prove that the title to the lumber should vest in appellant, and that it was not appropriated to the contract. Appellees refused to abide or accept the inspection of appellant's employés. Under all these circumstances, appellant was not entitled to maintain his action of replevin. His remedy, if any, was an action on the breach of contract for damages. Affirmed.

If Goods to be Manufactured do not when made conform in quantity and quality with the specifications of the order for them, the title thereto does not pass to the purchaser until his acceptance of them: Johnson v. Hibbard, 29 Or. 184, 54 Am. St. Rep. 787; Diversy v. Kellogg, 44 Ill. 114, 92 Am. Dec. 154. As to the right of a purchaser to inspect the goods before accepting them, see Pierson ▼. Crooks, 115 N. Y. 539, 12 Am. St. Rep. 831; Kuppenheimer v. Wertheimer, 107 Mich. 77, 61 Am. St. Rep. 317; Cream City Glass Co. ▼. Friedlander, 84 Wis. 53, 36 Am. St. Rep. 895.