Sibert v. Garrett

Opini-ON op the Court by

Judge Thomas

Affirming.

This action involves the constitutionality of an act attempted to he passed .at the 1922 session of the General Assembly of Kentucky, commonly known as the “Simmons Road Bill,” and which is printed beginning on page 459 in the published Acts of that session as an “Appendix.” It i-s entitled “An act to amend -an act relating to roads and bridges,” etc., and it repeals in part and amends chapter 17 of the Acts -of 1920, page 76. The latter act created a commission composed of four members to be known as the “State Highway Commission” and it, by t-he terms of the act, was authorized to administer and perform all -the duties belonging to the Department -of Public Roads in mid for the Commonwealth. The members of the -commission in that act were appointed by the Governor, and its dnties and the tenure of office of the members are set out in the act and which are not necessary to repeat here. The 1922 act,. *19 involved in this litigation, amended in various respects tbe 1920 act, two of which, were that the first members of the commission were selected by the act itself and thereafter it- was provided that the members should be elected by the legislature, and salaries were attached to the positions, whereas -there were none in the 1920 act.

The constitutionality of the 1922 act is assailed on a number of urged grounds, but only three of which do we consider of sufficient materiality ,to deserve our consideration, and they are: (1), that the legislature possessed no constitutional right to name in the hill the first members of the commission, or to elect their .successors thereafter; (2), because the act carried with it an appropriation of money for the payment- of the designated salaries of the members of the commission and it received -but nineteen votes in the Senate whereas an appropriation bill, under the provisions of section 46 of the Constitution, must receive a majority "of all the-members elected to each house,” and the nineteen votes which the act received in the Senate was not a majority of that body, and (3), that the Lieutenant-G-overnor did not .sign or affix his signature to the enrolled bill within the contemplation of 'section 56 of the Constitution. This action to test the validity of the act was filed by some of the designated members in it against others who declined to join as plaintiffs, and against the members of the commission under the 1920 -act. Defendants set up in their answer the variou-s -grounds relied on as rendering the act unconstitutional, to which a demurrer was filed which was overruled and plaintiffs declining to plead further the act was adjudged unconstitutional, and the petition was dismissed, whereupon plaintiffs prosecute this appeal.

Ground (1) urged against the validity‘of the statute, it is claimed by defendants, finds support in the provisions of sections 27 and 28 of our Constitution, the first of which says: ‘ ‘ The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body nf magistracy, to-wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another;” while the language of the next one is: "No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or *20 permitted.” It is insisted that the filling of an office, or the selection or designation of the person clothed with official functions, is essentially an executive duty and properly belongs to the executive department, and that by the terms of the above sections of the Constitution the legislature is forbidden to exercise it; but if not strictly so, that the officer should be appointed by that department with which his duties are allied and closely connected, and that in either event it was incompetent for the legislature to name in the act, or to subsequently elect, the members of the State Highway Commission created thereby whose duties are strictly and essentially executive or administrative, the latter of which is a part of and belongs to the executive department.

Able briefs are filed by counsel for both sides' exhibiting a most exhaustive research of the decisions involving the question and of the statements by law writers upon the subject, many of which are cited and relied on by respective counsel as supporting their divergent views; and in some instances counsel rely upon the same case or cases or upon the same text book authority, because of different constructions each of them places thereon. Counsel for appellants include the following* as supporting their contention, viz.: Little v. Willimon, 103 S. C. 50; Hovey v. State, 119 Ind. 395; Fox v. McDonald, 151 Ala. 51, 46 Am. St. Rep. 98, 21 L. R. A. 529; Richardson v. Young, 122 Tenn. 471; Cox v. State, 72 Ark. 94, 105 Am. St. Rep. 17; Biggs v. McBride, 17 Ore. 640, L. R. A. 115; State v. George, 22 Ore. 142, 29 Am. St. Rep. 586, 15 L. R. A. 737; People v. Freeman, 80 Cal. 233, 13 Am. St. Rep. 122; Dunbar v. Cronin (Arizona), 164 Pac. Rep. 447; 12 Corpus Juris 836, 22 R. C. L. 426; McArthur v. Nelson, 81 Ky. 67; Sinking Fund Commissioners v. George, 104 Ky. 260; and the three closely following cases of Purnell v. Mann, 105 Ky. 87; Poyntz v. Shackelford, 107 Ky. 546, and Sweeney v. Coulter, 109 Ky. 295; while appellees’ counsel rely upon the cases of State v. Washburn, 167 Mo. 691, 90 Am. St. Rep. 430; State, ex rel. v. St. Louis, 216 Mo. 94; Same v. Gordon, 236 Mo. 166; State v. Denny, 118 Ind. 457; Same v. Hyde, 121 Ind. 20; Same v. Peele, idem 496; State v. Gorby, 122 Ind. 17; People v. Bledsoe, 68 N. C. 460; Stockman v. Leddy, 55 Col. 25; Norwalk St. Ry. Company’s appeal, 69 Conn. 576, 39 L. R. A. 794; State v. Barker, 116 Iowa 96, 93 Am. St. Rep. 223; State, ex rel. v. Kennon, 7 Ohio 546; Robey v. Prince George’s County, *21 92 Md. 151; State v. Brill, 100 Minn. 499; Curtis v. Cornich, 109 Maine 384; Kilburn v. Thompson, 103 U. S. 168; Supervisors of Election, 114 Mass. 257; Meachem on Public Officers, section 107; 22 R. C. L. 424, and the domestic cases of Taylor v. Commonwealth, 3 J. J. Mar. 401, and Pratt v. Breckenridge, 112 Ky. 1

To notice in detail all of the cases relied on by both sides, or to discuss the grounds upon- which the court in each of them rested its opinion and to point out the distinguishing features between many of them would, expand this opinion to the dimensions of an- ordinary sized law book, which we do not regard as necessary to a statement of our position and the reasons therefor, even if the crowded time of this court did not warn against -it.

Perhaps no state forming a part of the national government of the United States has a constitution whose language .more -emphatically separates and perpetuates what might be termed the American tripod form of government, than does our Constitution, which history tells us came from the pen of the great declaimer of American independence, Thomas Jefferson, when delegates from Kentucky, just after it was admitted to the Union, waited upon him and he penned for them the substance of what is now section 28, supra, of our Constitution, containing an affirmative prohibition against one department exercising powers properly-belonging to the others and which without it contained only the negative prohibition found in section 27 -of that instrument find which was the extent of the separation of the piowers found in the federal Constitution and in those of a number of the states composing the confederated union at that time. Following the adoption of our first Constitution, other incoming states, either in their first constitutions or in subsequent ones, copied, either literally or in substance, the two sections of our Constitution and the courts of some of -them have announced divergent views as to the proper construction of the two sections, and in nearly every instance the opinion was made to turn upon the existence of some fact or facts extraneous to their language, notably among which were other provisions of the Constitution containing them, and which were made to apply to the particular facts under consideration and thereby furnished the reason for the particular conclusion reached; while another instance was that the appointment to the particular office involved, in the manner then being tested, had been exercised in that ¡manner under a prior *22 Constitution containing t:he same clauses as the subsequent one, and it was held that such contemporaneous construction of the prior Constitution was adopted as part of the subsequently framed one. In addition to those reasons for the apparent conflicts in the opinions there must also be mentioned the ever existing’ one of different courts arriving at different conclusions under the exact, or similar states of fact, which condition of the law is familiar to all practitioners. It would he but little trouble to point out instances since the formation of the United States wherein the court of only one state took a position diametrically opposed to all the others upon the same state of facts and later that position was adopted by a majority of the courts, a notable illustration of which is when the court held in the case of Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, that a citizen might sue a local public utilities company to recover special damages, for the violation .of its. local franchise contract made with the municipality in which it was operated. At that time every court in all the states of the union, as well as in Canada and England, denied any such right to the citizen and taxpayer; but that opinion was followed shortly by one of the North Carolina Supreme Court, and now a substantial number of the courts of last resort have adopted the principle.

It is insisted by counsel for appellants that the legislature under the constitutions of the respective states, unlike Congress under the Federal Constitution, has all the power not withheld from it by the Constitution of the state, which as'a general proposition is true as will be seen from 12 Corpus Juris 745, and which contains a repetition of what all other writers on the subject as well as the courts say. But a deeper probing into and investigation of the subject will reveal the truth that the rule so generally stated means, not that the legislature has "all powers” not withheld by the Constitution, but that it "may pass any acts that are not expressly or by necessary implication inhibited by their own constitutions or by the Federal Constitution. ’ ’ In other words, the legislature may perform all legislative acts not expressly or by necessary implication withheld from it, but it may not perform or undertake to perform executive or judicial acts, except in such instances as may be expressly or by necessary implication directed or permitted by the constitution of the particular state. To adopt the'lati *23 tudinous construction that the legislature may do anything not expressly or impliedly prohibited by the Constitution would, to our minds, at once destroy the separation of the powers of government into the three great departments.

In an early day this court, in an opinion written by one of the greatest lawyers who ever occupied a seat on the Court of Appeals (Chief Justice Robertson), in the case of Taylor v. Commonwealth, 3 J. J. Mar. 401, said that “Appointment to office is intrinsically Executive/-’ but that even so, it might be performed by a judicial officer when the duties of the office appertain strictly to the court, which was a clerk in that case. To the same effect are the Washburn, State v. St. Louis, and State v. Gordon cases, supra, as well as the Denny, the Bledsoe, the Stockman, the Kennon, the Brill, the Curtis cases, and perhaps others relied on by counsel for appellees, including the text in 22 R. C. L. 424, wherein it is said: “The appointment of officers is intrinsically an administrative or executive act, but this does not imply that no appointment can be made by any department of government other than the executive, for all the authorities agree that the courts and the legislature may appoint those public officers which are necessary to the exercise of their own functions(Italics ours.)

■Some of the cases cited and relied on by learned counsel for appellants, contain statements indicating a contrary view, but a critical examination of them will show that the peculiar facts of those cases, some of which we have hereinbefore recited, entered into the shaping of the courts’ opinions. But, however that may be, we do not regard an exact, or correct classification of the act of appointment to office as essential to the decision of the question in this case for reasons hereinafter to be noticed.

It can not fail to be observed that the reasons underlying the separation of our republican form of government into the three branches was to prevent one of the departments from absorbing and appropriating unto itself the functions of .either of the others. The purpose was to have each of them to so operate in their respective spheres as to create cheeks to the operations of the others and to prevent the formation by one department of an oligarchy through the absorption of powers belonging to the others; the evil effects from such concentration of power were outstanding in the pages of past history *24 the instances of which we need not stop to enumerate. It was to prevent such evil effects and a possible eventual revolution, and to preserve and forever perpetuate, if possible, the constitutional form of government, that sections 27 and 28 and similar ones were adopted, and we conceive it to be the duty of the courts to adopt the construction most conducive to such perpetuation- rather than one which would be a possible door for the destruction of the edifice as--contemplated; and especially so, when the language involved and to be construed is plainly susceptible to such a construction. In doing so we are aware of the universally applied and often reiterated admonition that it is the duty of the courts to declare an act constitutional and within the power of the legislature to enact rather than otherwise; but such admonition does not destroy the power of the courts to pronounce an act unconstitutional when its enactment is either expressly, 'or by necessary implication, inhibited and subversive of the purposes and intention of the makers of the particular Constitution under consideration. In the light of these observations we will now approach a determination of the question under consideration.

To begin with, the latest utterance of this court in the Pratt-Breckinridge case, supra, holds that under -no provisions of :our present Constitution is it competent for the legislature to- itself elect, designate or appoint officers whose duties are of the nature and character attempted to be conferred on appellants in this case. But it is said that the opinion in that case was what might be térmed a political one, and which in a sense may be accepted as true, and that its reasoning should not be followed on that account but rather should the doctrine of Sinking Fund Commissioners v. George, supra, and the other named cases immediately following it, be -apiplied in this case. Answering that.contention it might be conceded that there would be much force in it if the George opinion and those folio-wing it were supported by reasoning as sound or sounder than is found in the Pratt-Breckinridge opinion, which, however, we are not prepared to admit. Without incorporating excerpts from the latter opinion we are convinced, beyond doubt, that its reasoning is far more convincing than that contained in its short lived predecessors and, according to our view, is ¡practically unanswerable. Besides, the doctrine of stare decisis has not lost its -place in the law, and as said, in substance, in the case of Kentland Coal *25 and Coke Co. v. Keene, 168 Ky. 836, it is entitled to great weight and is adhered to by most courts, unless the principle established by the prior decisions is clearly •erroneous, “But the rule should not be departed from except on the fullest conviction that such an error has been committed.” As intimated, we are by no means convinced that such an error was committed in the rendition of the Pratt-Breckenridge opinion which has stood unchallenged for more than twenty years, and for that reason, plus its sound and, as we conceive it, almost unanswerable reasoning, we would hesitate to overrule it at this late day unless we were more thoroughly convinced of its unsoundness. At the time the George opinion was rendered the penitentiaries were under the-management of a board elected by the legislature as provided by chapter 4, Session Acts 1898, and the opinion in that case upheld the validity of that net. The PrattBreckinridge opinion was rendered on November 20, 1901, at a time when the penitentiary commissioners elected by the legislature under the 1898 act were still in office and they were, without testing the question, continued to be so elected until 1906 when the legislature enacted chapter 18 of the published Session Acts for that year which repealed the 189-8 act and provided for the appointment of the members of the board of control by the Governor. Prom that time forward the doctrine of the Pratt-Breckinridge case has been scrupulously followed by the legislature in not assuming to elect officers, except those whose duties pertain to its own sessions and, except that of Librarian, the grounds for which are fully ■set out in the Pratt-Breckinridge opinion, as well as many of the foreign cases, supra, notably the late Arizona case of Dunbar v. Cronin.

Primarily, the power of selecting public officers rests with the people they serve, but they may confide it in the Constitution they adopt, either expressly or by necessary implication, to whatever department of the government they see proper, and the question at last becomes one of the correct interpretation of the particular Constitution involved. Without naming them, and for the sake of brevity, it is sufficient to -say that our Constitution creates certain named state officers, and certain designated district and county officers and provides how they shall be filled by election, or by appointment in case of a vacancy, and in the latter part Of section 93 relating to legislatively created state officers it is said: “In *26 ferior state officers,' not specifically provided for in this Constitution, may be appointed or elected,' in such, a manner as may be prescribed by law, for a term not exceeding four'years, and until théir successors are appointed or elected and qualified.” Section 107 of tbe same instrument provides that, “Tbe general assembly may provide for tbe election or appointment, for a term not exceeding four years, of sucb other county or district ministerial and executive officers as may, from time to time, be necessary.” So far as we have been able to ascertain those sections are tbe only ones in the Constitution relating to the authority of the legislature with reference to tbe election or appointment of persons to fill office, except section 249, which relates exclusively to officers whose duties are immediately connected with and entirely appertain to the enactment of laws, and whose terms are only coextensive with that of the members of the legislature. It is, therefore, insisted by counsel for appellants., as it must be in order to maintain their position, that under the language of sections 93 and 107 of the Constitution, which is in substance the same in each of them, power is delegated to the legislature to itself select, either by election, or by appointment in the creating act itself, the officer or officers whose duties are tc execute it; while it is contended by appellees’ counsel that those sections by necessary implication limit the authority of the legislature to provide in the statute the prescribed method or means by which the officers created to execute it shall be appointed or elected, but that the legislature is given therein no authority to itself exercise the electing or appointing power. In other words, it is contended by appellees that the authority to prescribe a manner or mode by which an office may be filled is a distinct and separate power or authority from that of filling the office, and that contention is fortified not only by the Pratt-Breekenridge case but also by the case of Clarke v. Rogers, 81 Ky. 44, which arose under our former Constitution which our present one succeeded and in which, section 10 of article 68, practically the same language is found as in sections 93 and 107 of our present Constitution. It is also fortified by the opinions, supra, from the Supreme Court of Missouri, and by the Stockman, Kennon and other cases hereinbefore cited, as well as Meechem on Public Officers, section 107, wherein it is in part said: “So where the Constitution provides that all officers whose appointment is not other *27 wise provided for in the Constitution shall be chosen in such manner as may be prescribed by law, it is held that, while this provision authorizes the legislature to provide by law for the appointment or election of such officers, it does not authorize the legislature itself to make such appointment or election. To make good such a claim, it is said, ‘it must be made to appear that the-power to direct the “manner,” the mode, the way in which an act shall be done, and the power and authority to do the act itself, are one and the same thing. But that they are not identical or equivalent to each other is too clear for argument, and almost too clear to admit of illustration.’ ”

The Missouri Supreme Court in the case of State, ex rel. v. St. Louis, supra, on this point said: “But it is one thing to define an office and the duties pertaining thereto and provide for the filling of the same, and quite another thing under our Constitution (which contains the same language as does ours), for the legislature to undertake itself to appoint the officers;” and in the prior case of State v. Washburn, supra, the same court in referring to the similar section of' the Missouri constitution said: “That section expressly authorizes the general assembly, acting within its legislative capacity, to pass a law prescribing the manner in which an appointment shall be made, but it does not authorize the general assembly to make the appointment itself, nor authorize any one unconnected with the government to do so. To provide by law the manner in which an appointment shall be made is one thing, to make the appointment is another; the one is in its nature legislative, the other is essentially executive.”

Mr. Cooley, in his excellent work on Constitutional Limitations, 7th Ed., page 127, states the rule to be that, “Every positive direction (in the Constitution) contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision,” and on page 99 of the same work he says: “When the Constitution defines the circumstances under which a right may be exercised . . . the specification is an implied prohibition against legislative interference to add to the condition.” Those principles, applicable to interpretation of constitutions, are everywhere recognized, and when sections 93 and 107 conferred the power upon the legislature to provide for the “filling of inferior state offices in such manner as may be prescribed *28 by law,” or' to “provide for the election or appointment” of created county or district officers, the conclusion is inevitable, from the language employed and in the light of the purpose of the constitutional requirement segregating and separating the functions of government, that the authority of the legislature is limited to making such provisions, by exercising its authority to pass an act containing them and directing upon whom or with whom the power to appoint or elect was lodged, which electing and appointing agency should, perhaps, be selected from the department to which the. duties of the office necessarily appertain.

It may be true that numerically a greater number of courts take a contrary view, though it is untrue that -only two state courts adopt the conclusions herein expressed as erroneously stated by the Arizona court in the Dunbar •case, supra. But, whatever the number, we are convinced that they by doing so are inviting destruction of the constitutional barriers separating the departments of government and that our interpretation is much the sounder one and is essential to the future preservation of our constitutional form of government as originally intended by the forefathers who conceived it. Moreover, foreign opinions are no precedents to be followed by this court and are looked to only for their persuasive effect, and if they fail to “persuade” by the use of sound and logical reasoning, they should not be followed, howsoever great their number, since false reasoning may not be looked to for the establishment of truth whatever its quantity, and its dangerous tendencies are increased in proportion to the extent it is employed.

Besides the cited cases- -supporting the contention of appellees as to the limitations of the authority of the legislature under sections 93 and 107 of the Constitution, were we to adopt the opposite construction, insisted on by appellants, it would lead to a virtual overthrow of its sections 27 and 28 separating the functions of the state governments into three grand departments. It will be observed that only in section 107 is the power of the legislature to “prescribe” and “provide” limited to any one of .the three departments. It .is broad enough in section 93 to -confer the power on the legislature, if appellants’ contention be true, to appoint all inferior state officers and under -section 107 to appoint all district and county ministerial and executive officers, not provided for in the Constitution, whether their functions be *29 strictly legislative, executive or judicial. The logical result of the contention, if adopted and followed, would empower the legislature to appoint or elect the private secretary to the Governor; the commissioner, sergeant-at-arms-, tipstaff and bailiff of the Court of Appeals; all the officers connected with the Insurance Department; the enforcement officers of the “Blue Sky” law; the officers in the Geological Department; -the State Tax Commission ; the State Boad Department, as in this case; the members of the State Board of Health, as well as those of the various 'Counties; the county school superintendents of all the counties as well as their tax commissioners, and numerous other state, county and district officers now in existence and untold positions which may hereafter be created. If such power would not tend or serve to destroy the purpose and intention sought to be accomplished by separating the powers of government in the Constitution, it would be difficult to conceive of one that would. To thus throw open the doors- would offer an incentive for the assembling of strong and corrupt lobbies at each recurring session of the legislature to procure the passage of laws, not so much for the benefit of the public, but to enable the lobbyist or some political friend of his or of members of the legislature, to obtain a salaried berth for either past or future favors-, and the partial check or curb which the Constitution intended to provide against such contaminating activities would be wholly destroyed. Furthermore, such power on the part of the legislature, if a full exercise of it should be persisted in, would enable it to gradually absorb to itself the patronage and control of the greater part of the functioning agencies of the state and county governments and, thus endowed, it would be little short of a legislative oligarchy. We do not in the least intimate that any such motives, influenced the 1922 session of the legislature, or any of the appellants in the passage of the act now under consideration, nor do we attribute any such designs to any of the members of that legislature, but our suggestions apply -only to probabilities which it- was the intention of the people in framing and .adopting the Constitution to prevent as far as possible.

We are further fortified, as we believe, in our interpretation of the involved portion of section 93 and of section 107 by reference to other sections of the Constitution wherein the power and authority are expressly conferred or enjoined on the legislature to “prescribe”- *30 or “provide” (by the enactment of laws), for the enforcement of the requirements of the section, an illustration of which is found in section 246, whereby the compensation of public officers, except the Glovernor, is limited to $5,000.00 per annum, and, '“The general assembly shall provide for the enforcement of this section,” etc. The imposed duty to “provide” for the enforcement of that section is as broad as the duty to “prescribe” or “provide” the “manner of,” or “for” the appointment or election of officers under sections 93 and 107; and, surely, no one would contend that the legislature under the authority given it by section 246 could, by its own fiat, punish a violation of the section, or by a general law confer upon itself the right to do so. Yet, it would seem that if the thing for which the legislature should prescribe or provide (by enacted law) a manner or method, could bo done by it when applied to the appointment or election of officers, could also be done directly by it when its authority is “to provide (by enacted law) for'the enforcement (of the particular section) by suitable penalties,” etc. - So that, from whatever angle the question is viewed we are carried bach to the original proposition that the legislative department shall enact or repeal laws; the executive or administrative department shall enforce them, and the judicial department shall .pass upon their validity and declare them; and that neither may encroach upon the functions of the other, unless otherwise provided in the Constitution either expressly or by necessary implication, or where the exercised act is connected with and appertains to the functions of the exercising department. It is unnecessary for the purposes of this opinion for us to determine where or in what department the power to elect or appoint the officer should be lodged by tire legislature, since in this case it attempted to lodge it nowhere, but. to exercise the right itself, which we hold it did not possess.

What we have said applies to the selection of officers strictly; it is not intended to apply, as the question is not here, to temporary agencies for the construction of public buildings, as was held in the case of McArthur v. Nelson 81 Ky. 67; or to a water committee, as was held in the case of Davis v. Portland Water Committee, 14 Ore. 98; or to one or a collection of persons designated to perform a single and temporary act and in no sense performing a continuous public trust. 'See notes to State v. Hocker, *31 63 Am. St. Rep. 174, on page 189. Whether the power •of the legislature to appoint such temporary agencies is or not forbidden by the 'Constitution is not involved in this case, and we will indulge in no obiter statements with reference thereto.

Contention (2), against the constitutionality of the act would ibe well ‘taken if there was no prior appropriation of funds for the payment of salaries and expenses of the 'State Road Department, since we are convinced that the creation of an office and providing for the payment of an attached salary with funds then appropriated for the purpose is an appropriation of money, In this case, however, it appears that the 1920 act appropriated $250,000.00 for the payment of salaries and expenses of the State Road Department, and i’t is our conclusion that the 1922 act in allotting a part of that already appropriated fund to the payment of salaries of the members of the 'Commission created by the latter act was not an .original appropriation of money but only the distribution, in the manner indicated, of an appropriation already made for the purpose. But we will not elaborate this point because of the conclusion hereinbefore reached.

Neither do we think contention (3), is meritorious in view of our conclusion .a,s to contention (2), above. If the act did not carry with it an appropriation a majority of a quorum of each house, provided it was as many as two-fifths of the elected members thereto, was all that was required to pass the act and the nineteen .votes which it received in the Senate met that requirement. It, then, no.t being an act appropriating money and, therefore, not requiring the votes of a majority of each house, the presiding officer of the Senate could not defeat the effect of his signature to the bill by á written statement above it that the act according to his interpretation was one carrying an appropriation. Indeed, we doulbt if the presiding officer of either house may withhold his signature to a bill because of any grounds growing out of his construction of the act. - Be this, however, as it may, we have concluded also not to elaborate the point for the reasons stated.

Because, however, of the conclusions expressed with reference to the legislative appointment of the commissioners created by the act, about which we have no doubt but which was reluctantly reached, we are forced to hold *32 the act- -unconstitutional, and the judgment of the trial court in doing so is affirmed. Whole court sitting. Judge Clay dissenting.