Lead Opinion
delivered the opinion of the court:
This cause has been submitted for decision on demurrer to an amended petition for a writ of mandamus filed originally in this court, upon leave granted, for the purpose of testing the validity of the amendment , to the State Civil Service law, approved on June io, 1911, (Laws of 1911, p. 222,) as applied to certain employees. The three petitioners are, respectively, the assistant chief clerk, the chief corporation clerk and the book-keeper in the office of the Secretary of State, and the prayer of the petition is that the Auditor of Public Accounts be directed to issue to the petitioners, warrants on the State Treasurer for the respective amounts due to them upon pay-rolls, certified by the Secretary of State, for the months of July and August, 1911, without the certificate of the State civil service commission required by section 31 of the Civil Service law.
The petition sets forth the various duties imposed by law upon the Secretary of State, and avers that these duties are in the main ministerial, and are so numerous that it is impossible for the Secretary of State personally to perform them all, and that they are necessarily delegated to a large number of assistаnts of various kinds, who perform them under the direction of the Secretary of State. These duties naturally fall into departments, over each of which has been placed a chief assistant. The duties of the relator James W. Gullett, as assistant chief clerk, are, under the direction of the chief clerk, who is the chief assistant or deputy of the Secretary of State, to assist in supervising the work of the office and in the absence of the chief clerk to perform his duties; to pass upon the legality of petitions of foreign corporations for license to do business in this State and perform or direct all work in respect to such licenses; to direct or assist in the performance of any other work assigned him. In the absence of the chief clerk he has general supervision, of all the work of the office, with discretionary power on all questions, handles all fees received, directs their entry in the proper accounts, reports them to the Secretary of State, and decides and disposes of all matters relating to the legality of foreign and domestic corporations referred to him. Acting either as chief clerk or assistant chief clerk, he has authority to give and enforce, and does give, directions to subordinates in the various departments, being subject at all times to the directions and control of the Secretary of State. The relator Hezekiah B. Williams is the head of the corporation department, and his duties are, under the supervision of the chief clerk, to handle, decide and dispose of all matters regarding the formation of domestic corporations or changes therein; to see that all papers filed in connection with such formation and changes are according to law; to supervise and direct the work of those clerks under him, and to check the fees payable in connection with the organization or increase of capital stock of domestic corporations. The relator James C. Peek is the book-keeper, whose duty it is to check the expense accounts and pay-rolls and keep full and complete records and books of account of all moneys received and disbursed by the Secretary of State.
The relators have been performing their respective duties since the election of the Secretary of State, in 1908. The General Assembly, by an act apрroved June 10, 1911, to provide for the expenses of the State government until1 the expiration of the first fiscal quarter after the adjournment of the next regular session of the General Assembly, appropriated to the Secretary of State for clerk hire, among other sums, $3000 per annum for an assistant chief clerk, $2400 per annum for a chief corporation clerk and $2000 per annum for a book-keeper, and authorized and directed the Auditor of Public Accounts to draw warrants on the State Treasurer for such sums on monthly pay-rolls, duly certified to by the head of the department. On July 31, T911, the Secretary of State duly certified to a pay-roll, as required by the Appropriation act, showing that the relators were entitled to receive for services rendered during the month of July, 1911, James W. Gullett $250, H. B. Williams $200 and J. C. Peek $166.66. A similar pay-roll was certified on August 31, 1911, for the month of August. The services certified in these pay-rolls were actually performed by the relators. The pay-rolls were presented to the Auditor on their respective dates, and he was then, and afterward, requested to issue warrants to the relators but refused, claiming that he was not authorized to do so upon the certified pay-roll of the Secretary of State without the further certificate of the State civil service commission required by section 31 of the Civil Service act.
The relators insist that the certificate of the civil service commission is unnecessary, for the reason that the Civil Service act, as applied to officers whose offices are created by the constitution, is null and void because it violates the following provisions of the constitution: First, that which declares that the powers of the government of this State are divided into three distinct departments,—the legislative, executive and judicial; second, that which declares that the executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General; third, that which directs that the executive officers, except the Lieutenant Governor, shall perform such duties as may be prescribed by law.
The State Civil Service act follows closely, section for section, the City Civil Service act and is substantially a copy of it, only such changes being made as are rendered necessary to adapt it to the State service instead of municipal serviсe. The City Civil- Service act was passed in 1895 and has been in force in the city of Chicago since November of that year. Controversies as to' its constitutionality soon arose, and cases involving that question were brought to this court and decided upholding the constitutionality of the act and of the principle for the appointment of emploj^ees in the public service upon which it is founded. (People v. Kipley,
The State Civil Service act, first passed in 1905, applied only to offices and places of employment in the charitable institutions of the State, and, with subsequent amendments, has since been in force. The amendment of 1911 extended its operation to all offices and places of employment in the State, with certain exceptions mentioned in section 11 not now necessary to refer to. The essential features of the act, so far as the questions now raised are concerned, are, that it authorizes the appointment by the Governor, with the consent of the senate, of a commission of three members, no more than two of whom shall be members of the same political party, whose duty it shall be to classify and grade all offices and places of employment in the State service, with specified exceptions; that the commission shall provide for the examination of all applicants for appointment to the offices and places so classified, and shall prepare a register of such aрplicants as shall have satisfactorily passed the examinations according to the rules of the commission; that when an appointment is to be made the commission shall certify to the head of the department in which the appointment is to be made, the name of the person standing highest on the register, and the head of the department shall appoint the person so certified.
The first constitutional provision which the act is supposed to violate is article 3, which declares that the powers of government are divided into three distinct departments,—the legislative, executive and judicial,-—and prohibits any person or collection of persons, being one of these departments, from exercising any power belonging to either of the others, except as thereinafter expressly direeled or permitted. This article does not appear to be in any way involved. It is the undoubted law that the legislature may pass any law and' do any legislative act not prohibited by the constitution of the State or the United States. (People v. Hill,
The second constitutional provision which is supposed to be violated is the first clause of section 1 of article 5, which provides that the executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Suрerintendent of Public Instruction and Attorney General. This clause of the constitution is a declaration of a fundamental rule in accordance with which the government is to be administered, but it does not purport to give a full and complete enumeration of the various agencies through which the law is to be enforced. Neither does it declare what shall ,be the powers or the duties of any of the officers named, or that they shall be so entirely separate and distinct as to have no connection with or dependence on one another. The officers are required, in the next sentence, to perform such duties as may be required by law, and thus, except as specific directions or prohibitions are found elsewhere in the instrument, the constitution commits to the legislature the entire question of the powers and duties of all the officers of the executive department, their relations with one another and the manner and the means by which they shall enforce the laws. The fact that such officers are created by the constitution does not confer unrestricted power upon them, and, except as to such rights and powers as they derive from the various provisions of the constitution, they are entirely subject to the will of the legislature.
The constitutions of 1818 and 1848 contained the provision that the executive power of the State shall be vested in a Governor, and the Federal constitution provides that the executive power shall be vested in a President of the United States, but it was never held that these provisions conferred upon the Governor in the one case, or the President in the other, the right to proceed in the enforcement of the law, which is the special function of the executive, according to his own will and pleasure, unrestrained and uninfluenced by the action of the legislative department. Each is the head of one department of the government,— the executive,—charged with the duty of taking care that the laws be faithfully executed, but each, in the discharge of his duties, is subject to the control of those laws. The legislature may impose upon any or all of the executive officers such duties as it sees fit, not inconsistent with their duties imposed by the constitution; may change such duties from time to time; may transfer them from one officer to another, and may require two or more of such officers to co-operate in the same work to such extent as it may deem best. On this subject it was said by the Supreme Court of the United States, in Kendall v. United States,
It is finally argued that the act violates the provision contained in section 1 of article 5 of the constitution, that the Secretary of State, together with other executive State officers, shall perform such duties as may be prescribed by law. The only duties specifically imposed upon the Secretary of State by the constitution are found in section 9 of article 4, which directs him to call the .house of representatives to order at the opening of each new assembly and preside over it until a temporary presiding officer shall have been chosen and shall have taken his seat, and in article 5, by section i of which he is required to reside at the seat of government and keep the public records, books and papers there; by section 4, impliedly, to receive and transmit to the speaker of the house of representatives the returns of elections for the officers mentioned in section 3; by section 16, impliedly, to receive and file bills passed by the General Assembly but not signed by the Governor and not returned to the General Assembly before its adjournment; by section 20, • to keep an account of all moneys received or .disbursed by him from all sources and make a semiannual report thereof to the Governor, under oath; by section 21, to make a report to the Governor at least ten days before each regular session of the General Assembly, and to furnish to the Governor, at any tibie he may require it, information in writing, under oath, upon any subject relating to the condition, management and expenses of his office; by section 22, to keep and use officially, as directed by law, the great seal of the State. The legislature cannot absolve the Secretary of State from the performance of these duties or impose them upon another. So far as the constitution confers any power upon him, he is beyond the reach of the legislature. It cannot deprive him of the custody of the great seal of State or authorize another officer to affix it to any document, and it cannot rеquire the public records, books and documents to be kept elsewhere than at the capital. But the Secretary of State is not independent of the legislature in the performance even of these duties. He is subject to its control in all things connected with them, where the constitution has not imposed a limitation upon the power of the legislature. What are the public records, books and papers which are to be kept at the seat of government must be ascertained by an examination of the statutes. They are only such records, books and papers as some statute names. While they must be kept at the seat of government, the legislature may require them to be kept in the State house, in offices provided for that purpose. While no other officer can be authorized to use the great seal, the Secretary of State can use it only as directed by law. The legislature may regulate the form in which the records and accounts shall be' kept and reports shall be made, and, in general, control whatever the constitution has not prescribed. So the independence of the legislature on the part of the Secretary of State, even in regаrd to his closely circumscribed constitutional duties, is confined within narrow limits. Each of the several executive officers mentioned in the constitution, while the head of one division of the executive department, is not a co-ordinate officer with the Governor. The supreme executive power is lodged, by section 6 of article 5, in the Governor, who is the head of the executive department under the present constitution no less than under preceding constitutions. The other executive officers named are entirely subject to the control of the legislature in the conduct of their offices, except where the constitution, expressly or by implication, imposes certain duties or confers certain powers, or where the name of the office itself implies the possession of certain powers. The Attorney General is vested with many powers and duties, and these appertain to his office under the constitution. He cannot be deprived of these common law functions by the legislature, but new duties may be imposed. The officers accept their offices subject to such burdens as the legislature may impose. Their duties may be increased, the number of their assistants mаy be diminished, their work may be made more burdensome and the facilities for doing it lessened. The law imposes no penalty for refusing to accept the offices, but they must be accepted with their burdens.
The duties of the Secretary of State are for the most part ministerial, and it is so averred in the petition. In fact, his is a clerical office and its duties are chiefly of a clerical nature, consisting of the filing and keeping of such papers and records as the legislature may direct him to file and keep, the issuance of such licenses as the legislature authorizes him to issue, the custody and care, purchase and distribution of such public property or supplies as the legislature may direct. He has but the most limited authority except as he receives it from the legislature, and occupies no such position with relation to the State government as is occupied by the Secretary of State of the United States with relation to that government.
The petitioners are not officers of the State. No law has ever been passed creating the office either of assistant chief clerk, chief corporation clerk or book-keeper in the office of the Seсretary of State. The only recognition such positions have ever received is, that from session to session appropriations of varying amounts have regularly been made for the payment of the holders of them. This amounts to no more than authority to the Secretary of State for their employment. The duties performed are a part of those imposed upon the Secretary of State, not by the constitution but by statutes.- The constitutional duties of the Secretary of State form so small a part of those he is required to perform as to be almost negligible in quantity compared with his statutory duties. They have not varied substantially since the adoption of the first constitution, which required him to keep a fair register of the official acts of the Governor, and, when required, to lay the same, and all papers, minutes and vouchers relative thereto, before either branch of the General Assembly, and to perform such other duties as should be assigned him by law. The language of the constitution of 1848 was the same. The first legislature under the constitution, by an act approved March 1, 1819, assigned to the Secretary the duty of keeping the acts, laws and resolutions of the General Assembly and other pаpers and records. (Laws of 1819, p. 87.) From that time to this the legislature, by numerous acts passed from time to time, has assigned duties to the Secretary of State, but with such duties as the legislature, in the course of fifty years, had added to his constitutional duties, the Secretary of State in 1869 needed only one assistant, though he employed six janitors and two night watchmen. (Debates of Const. Conv. 1076.) In the forty years and more since that time the volume of business in the office of the Secretary of State has had a very great increase, both by reason of the unexampled growth of the State in population, wealth and business and of the •addition of other statutory duties. Some of the duties prescribed by law may be found set forth in Hurd’s Statutes of 1909, chapters 124, 127, 128, 147, 114, 32.
The position of counsel for the relators is, that the constitution directs that the Secretary of State shall perform such duties as may be prescribed by law; that when any duty is prescribed by law it thereupon becomes a duty which the Secretary of State is required by the constitution to perform; that being required to perform it, he may do it by a deputy or agent; that if he performs it by a deputy or agent the act so done by his agent he does himself and thus the constitution is complied with, but that if he is cоmpelled to accept a deputy or agent whom the law authorizes some other person to select, then the act of performance is not his act, but the duty prescribed by law to be performed by the Secretary of State he has been prevented from performing, and, contrary to the constitution, the law has required its performance by another person. The argument goes, and must go, to the extent that the law can exercise no control whatever over any appointment under the constitutional executive officers, however unimportant. If the Secretary of State is authorized to provide a janitor for a building, the selection must be the personal act of the officer, which he cannot delegate, nor can his choice be restricted in any way. If he has dozens or scores of assistants to employ, his choice is absolute and uncontrolled-. The only control the legislature can exercise is through the amount of money it may appropriate. It is also argued that by various statutes under the constitutions of 1818 and 1848, certain duties, the character of which were well known and understood, became a part oí the official functions of the Secretary of State; that the power of the Secretary of State to appoint deputies and assistants at his own will and pleasure had been exercised and acquiesced in without objection; that these duties and this power belonged to the office of the Secretary of State at the time of the adoption of the constitution of 1870, and were therefore adopted by that constitution and became a part of the organic law of the State. It cannot, however, be maintained that the statutory duties performed by the executive officers when the constitution was adopted became at that time unchangeable. Section 1 of the schedule recognized the continuance of all the statutes imposing duties on the executive officers, and the constitution contains no evidence of an intention that they should be irrepealable. Such statutes continued to be operative as statutes under the new constitution until changed by the legislature, but the power of the legislature to amend or repeal them was not affected.
The declaration that the officers of the executive department shall perform such duties as may be required by lаw was not intended to be a restriction on the legislature. On the contrary, it removed any restriction upon the power of the legislature to require of such officers the performance of any duties, that might be implied from the imposition of specific duties and left the whole question open to the legislature. The legislature could determine what duties each officer should perform in addition to those specifically mentioned in the constitution, and when, where, how and by what instruments he should perform those duties. The officer, in relation to the State, is neither a contractor nor an employee. In relation to the clerks and employees in his office he is not a contractor or employer or a master. The officer does not occupy the relation of an independent contractor, and arguments founded upon the doctrines of contract, master and servant and resporudeat superior have no application and little analogy. The duties which the officer is required to perform concern the State. He must perform them, not because he has contracted to, but because the law has imposed them on his office. The employees who assist him are not his employees but employees of the State. The work they are engaged in is the work of the State. They are in the public service,-—not private service. The State, and not the officer, employs and pays them, and he is not liable for their negligence. (Barker v. Chicago, Peoria and St. Louis Railway Co.
Our attention is called to undesirable results that might follow an attempt by the commission, conspiring with the Governor, to control the appointments in the offices of the other executive officers. Such a conspiracy is not to be presumed, but the judicial department of the government is bound to presume that the other two departments are actuated by honest motives, that the legislature passed the act with a view single to the improvement of the public service, and that all the officers of the executive department will honestly and fairly endeavor to enforce it with the same view.
The need of civil service laws has been felt in other States, and they have been adopted by the national government and by the States of New York, Massachusetts and Wisconsin. The Supreme Courts of the three States named have sustained the validity of their respective laws, and New York has embodied the principle in its constitution, adopted in 1894. (Rogers v. Buffalo,
The writ of mandamus will be denied.
Writ denied.
Concurrence Opinion
specially concurring:
In my opinion the conclusion that the peremptory writ must be denied is correct, for the reason that the relators do not exercise any power conferrеd or discharge any duty imposed by the constitution upon the Secretary of State. The constitution creates an executive department, consisting of a Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General, and, in the distribution of the powers of the government into the legislative, executive and judicial, declares that no person or collection of persons being one of those departments shall exercise an}*- power properly belonging to either of the others, except as expressly directed or permitted by some provision of the constitution. No attempt was made to specify in detail the powers or duties of the officers of the executive department which were not to be exercised by any other department of the government, and no such specification -was required. The constitution gives to the Secretary of State the custody of the great seal, and requires him to file in his office any bill presented to him by the Governor, with his objections thereto, after the adjournment of the legislature, but his designation as Secretary of State implies the performance of such clerical duties as pertain to the office of a secretary, such as the filing and preservation of State documents and writing and preserving public records of the State. In like manner the duties of a treasurer to receive and safely keep the public funds are implied from the nature of the office, and the constitution prohibits paying them out except in pursuance of an appropriation made by law and on the presentation of a warrant issued by the Auditor thereon. No specification in the constitution of the- duties of an Auditor of Public Accounts was required, but they are necessarily implied from the title of the office.
It is a legislative function to provide suitable places and means for the performance of their duties by the officers of the executive department, but it is not within the power of the General Assembly to deprive them of the powers conferred upon them by the constitution, either in express terms or by implication from the nature and designation of the office. The General Assembly could not provide that the papers and records which, under the constitution, pertain to the office of the Secretary of State, should be kept or made by some other officer, board or authority; that the moneys of the State should" be received, kept or paid out by any other officer than the Treasurer; or that the accounts against the State should be audited except by the Auditor of Public Accounts. It necessarily follows that where the duties of a Secretary of State must be performed through an assistant, the General Assembly has no power to designate the assistant or deputy, either directly or through any board or other authority. The assistant or deputy is but the shadow of the Secretary and must perform all official acts in his name. It is essential to the independence of the Secretary that he shall have perfect liberty of choice and full power of selection, upon his own personal judgment and information, of those through whom he discharges personal duties imposed upon him by the constitution.
There is a constitutional provision that the officers of the executive department shall perform such duties as may be prescribed by law, and this applies to the Secretary of State. Many duties have been so prescribed by the General Assembly, but unless they are such duties as are implied from the title of the office, the General Assembly would be at liberty to impose them upon other existing ofñcers, or officers and boards created by law. If the General Assembly may prescribe duties to be performed by the Secretary of State, it can at any time take them away and require their discharge by some other officer or some board or commission, which would not be within the legislative power if the duties pertained to the office under the constitution. The duties of the relators in passing upon the legality of petitions of foreign corporations for licenses to do business in this State, deciding upon matters relating to the legality of foreign and domestic corporations, disposing of matters regarding the formation of domestic corporations or changes therein, and the other matters mentioned in the petition, are of that character and are duties created by law and not by the constitution. Provisions for the selection of assistants to discharge such duties do not infringe upon the constitutional provision separating the powers of the government into distinct departments, and prohibiting the exercise of powers belonging to one department by any person or collection of persons constituting another department.
Dissenting Opinion
dissenting:
Believing that a majority of the members of this court have reached an erroneous conclusion upon the vital questions involved in this case, I desire to state the reasons upon which I base my dissent therefrom. The controlling facts are correctly stated by Mr. Justice Dunn in his opinion and need not be repeated.
I do not disagree with the majority opinion as to the legal questions which arise out of the facts presented by this record. Stripped of all unnecessary verbiage, the sole question to be determined is whether the legislature has the power, under the constitution, to take from the executive officers of the State the power to appoint such assistants and subordinates as are necessary to enable them to discharge the duties required of such officers under the constitution and laws of the State. To this question the majority opinion gives an affirmative answer, and it is from that conclusion that I desire to dissent. The majority opinion very correctly states the proposition as follows: “If the constitution confers upon the Secretary of State * * * the exclusive power of appointment, the act would violate such other provision if it undertook to take such exclusive power from him and confer it on another.” In the above quotation the point is conceded that the legislature cannot deprive the Secretary of State of any of his constitutional powers. This being conceded, if it can be shown that the power to appoint necessary clerks and assistants is conferred upon the Secretary of State, either by express provision of the constitution or necessary implication, it would seem necessarily to follow that the conclusion reached by the majority opinion is erroneous. In my opinion such power is necessarily implied, and I shall briefly state the reasons upon which I base this view.
Under all the constitutions that have been adopted since the State was organized, the powers of the State government have been vested in the three distinct, co-ordinate branches. Thus, under the constitution of 1870 all judicial power is vested in certain enumerated courts, the legislative power in the legislature, and the executive power in the Governor and other executive officers of the State. In this general distribution of the powers of government the delegation was сomplete, leaving no residuum of such powers to be subsequently disposed of. Section 1 of article 6 of the constitution provides: “The judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns.” This clause of the constitution has uniformly been held to completely dispose of the judicial powers of the State, and to prohibit the legislature from vesting judicial functions in any courts other than those provided for in said section i, and the Appellate Court, which is provided for in section u of article 6.
It has often been urged by members of the legal profession,—and not without good reason,—that our judicial system would be greatly improved if we had an appellate court created exclusively for appellate court duty wholly distinct from' our circuit courts. But the difficulty in establishing such a court is, that all of the judicial powers of the State have been delegated to the courts enumerated, leaving no residuum of power in the legislature to create such appellate court, or, indeed, any court of any class or grade not specifically provided for in article 6 of the constitution. In speaking of this clause of the constitution, this court, in Missouri River Telegraph Co. v. First Nat. Bank,
Section 1 of article 4 provides that the “legislative power shall be vested in a General Assembly, which shall consist of a senate and house of reрresentatives, both to be elected by the people.” This section vests all legislative power in the two houses of the General Assembly, and the legislature cannot delegate its general legislative authority, and whatever of legislation is enacted, to have the force and effect of a law of the State, must be passed in accordance with the constitution by such General Assembly. (Schweiker v. Husser,
When the executive powers of the State were delegated to the several State officers enumerated in article 5 of the constitution, certain specific duties were mentioned in the constitution to be performed by the different State officers. Certain duties are laid upon the Governor, others upon the Lieutenant Governor, and still others upon the Secretary of State and other executive officers .named in the constitution. It must be borne in mind that there is a clear distinction between a duty and the power to perform it. The legislature may prescribe executive duties to be performed by the executive officers and judicial duties to be performed by the judiciary, but the power and authority of the officers of these departments to perform these duties are derived from the constitution. When a statute is passed by the legislature creating new rights and prescribing remedies, designating what particular court authorized by the constitution shall determine the rights and administer the remedies, there is no delegation of additional judicial power, but the power of the courts vested by the constitution is brought to bear, by legislative direction, upon new rights and remedies. It would be absurd to say that the legislature could delegate either judicial or executive powers. It has no such powers and hence cannot delegate them to other departments..
In addition to the duties expressly distributed to the several executive officers of the State, the name and nature of the several offices created necessarily imply that other functions shall be performed by the various executive officers. The implications from the provisions of a constitution are as important as its express provisions and have always been regarded in construing the constitution. In respect to the constitution of the United States the rule is established that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. (Story on Constitution, sec. 430; United States v. Fisher,
When the office of Secretary of State was created it had a well defined and well understood meaning in the governmental history of Illinois. The word “secretary” is synonymous with the word “clerk” or “scribe,” and it means a person employed to write orders, records and the like, so that the title “Secretary of State,” in arid of itself implies an officer who is charged with the duties of keeping the official records of the State,'—not only as regards the acts and doings of the chief executive, but of the legislative branch as well. If one desired information as to the official transactions of a city he would naturally expect to find the record with the city clerk. If information was desired in reference to the corporate action of a private corporation it would reasonably be expecte'd that the secretary or clerk of such corporation would have such information on his books. And so in reference to the Secretary of State. The very name itself implies a line of duties that were conferred upon the Secretary by the constitution under the doctrine of implied powers. When the office of Secretary of State was created by the constitution of 1870 all of the powers prescribed by the constitution were created and enjoined upon that officer, and such other powers as are necessarily implied from the nature of the office as well as those that are necessary to carry out those expressly conferred. It was well known, even in 1870, that the office of Secretary of State involved the discharge of duties far beyond the capacity of any single officer to perform. It must be assumed that the constitutional convention knew that in order to enable the Secretary of State to discharge the duties required of him by the constitution and those that are clearly implied from the character of his office, it would be necessary to employ numerous clerks and assistants and to subdivide the duties of the Secretary into departments, so that the immense volume of business that necessarily had to pass through that office could be systematized and performed. Still, with those facts before the constitutional convention, no express provision was made for the appointment, by any power in the State, of a single assistant to aid this officer to discharge the duties that were known to belong to his office. And in this connection it must also be borne in mind that prior to the adoption of the constitution of 1870 it had been the uniform practice of the Secretary of State and other executive officers to exercise the power of appointing such clerks and assistants as were necessary to enable them to discharge their constitutional duties.
In view of these facts it seems to me so clear as not to admit of argument or doubt, that the power to appoint necessary subordinatеs in the several executive offices of the State government was necessarily vested, by clear implication,- in the several officers of the executive department. I think the constitution should be construed precisely as though there was an express provision declaring that the Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction and Attorney General shall each have the power to appoint all clerks, deputies and assistants that may be necessary to enable such officers to discharge the duties required of them. If such express provision existed in the constitution there could be no doubt by whom the power to appoint such subordinates should be exercised. If a proposition to insert such provision in the constitution had been made, in all probability it would have been thought unnecessary, since from the very beginning of the State the several executive officers had uniformly and without question exercised the power of appointing their own assistants and helpers, and it doubtless would have been said that no one would suppose that the State Treasurer would ever be empowered to selеct the assistants for the Attorney General, or that the Superintendent of Public Instruction would be authorized to name a book-keeper in the State Treasurer’s office or select a private secretary to the Governor. Such a suggestion would have been treated as ridiculous by the■ constitutional convention, and it is a matter of great surprise to me that a proposition no less absurd should receive the approval of a majority of this court.
When one of the executive officers of the State appoints an assistant to aid him in performing his official duties, what sort of a power has such executive officer exercised? It is an act done in furtherance of the discharge of his executive duties and is made necessary by the fact that the duties required of him cannot all bq performed by him personally. But the act of appointing is the exercise of an executive power, so it has been determined by the authorities that the making of such appointments are in their nature intrinsically executive acts. (Mechem on Public Officers, sec. 104, and cases there cited.) When the constitution conferred all of the executive powers of the State on the State оfficers enumerated, it necessarily by a clear implication conferred upon such executive officers the executive power to appoint such necessary assistants as would enable them to discharge the duties required of them. The power to appoint to an office or a position implies the exercise of judgment and will. The decisions of the courts, both State and Federal, are to the effect that the word “appointmerit” means the choice of a person to fill an office and that the selection of one for such appointment constitutes the essence'of the transaction; that the selection must be the discretionary act of the officer clothed with the power of appointment, and while he may listen to the recommendations or advice of others, yet the selection must be, in its final determination, his act, and it has never been regarded or held to be merely ministerial. (People v. Mosher,
The cases of People v. Kipley,
If the conclusion to be drawn from the concurring opinion of Mr. Justicе Cartwright were applied in the case at bar, it would necessarily result in awarding the writ for at least two of the relators. As I understand his special concurrence, his view is that the legislature cannot interfere with the appointment of any assistants to any executive officer that are necessary to enable such officer to perform the duties required of him by the constitution or that are clearly implied from the title of his office; that the Civil Service law can only be properly applied to such subordinates as are required to perform that class of services which might as well be assigned to one officer as to another. By reference to the petition filed by the relators it will be seen that one of the petitioners is the chief clerk in the Secretary of State’s office, another is the book-keeper in the office of the Secretary of State and the other is the chief corporation clerk in the Secretary’s office. The constitution, by section 1 of article 5, provides that the Secretary of State shall reside at the seat of government and “keep the public records, books and papers there, and shall perform such duties as may bе prescribed by law,” and by section 20 of said article it is provided that “an account shall be kept by the officers of the executive department, and of all the public institutions of the State, of 'all moneys received or disbursed by them, severally, from all sources, and for every service performed;” and that each of said officers shall make a semi-annual report thereof to the Governor, under oath. To perform the duties expressly required under these constitutional provisions it is indispensably necessary that the Secretary of State should have both clerks and book-keepers to assist him. Then, if the legislature can not interfere with the selection of such clerks and assistants as are necessary to enable the officer to discharge his constitutional duties and those necessarily implied from the title of his office, how can it be said that the civil service commission can designate who is to fill the positions of relators or exercise any control over them? If the line of distinction is observed which is pointed out in the concurring opinion of Mr. Justice Cartwright, the writ should be awarded in this case as to two of the relators.
Dissenting Opinion
We agree with the views expressed in the foregoing dissenting opinion of Mr. Justice Vickers.